Opinion
NO. 12-17-00184-CR
01-10-2018
OTIS EDWARD HILL, APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEAL FROM THE 114TH JUDICIAL DISTRICT COURT SMITH COUNTY , TEXAS
MEMORANDUM OPINION
Otis Edward Hill appeals his conviction for possession of a controlled substance. In one issue, he contends that a portion of the court costs assessed by the trial court are unconstitutional. We affirm.
BACKGROUND
Appellant was charged by indictment with the felony offense of possession of a controlled substance. Pursuant to a plea agreement with the State, Appellant pleaded "guilty." The trial court deferred finding Appellant "guilty" and placed him on community supervision for two years.
Thereafter, the State filed a motion to proceed to final adjudication alleging that Appellant violated certain terms and conditions of his community supervision. At the hearing on the State's motion, Appellant pleaded "true" to several of the State's allegations. The State abandoned one allegation. Ultimately, other than the abandoned allegation, the trial court found the State's allegations to be "true," revoked Appellant's community supervision, and sentenced him to imprisonment for nine months. This appeal followed.
COURT COSTS
In one issue, Appellant argues that the trial court erred in assessing unconstitutional court costs and urges this Court to modify the trial court's judgment and withholding order to remove the 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 $133.00 on conviction of a felony. TEX. LOC. GOV'T. CODE ANN. § 133.102(a)(1) (West Supp. 2017). 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. 2017); Salinas v. State , 523 S.W.3d 103, 106 (Tex. Crim. App. 2017).
In Salinas , the court of criminal appeals held the statute to be unconstitutional with respect to two of these accounts—an account for "abused children's counseling" and an account for "comprehensive rehabilitation." See Salinas , 523 S.W.3d at 105. As a result, the court set forth that any fee assessed pursuant to the statute must be reduced pro rata to eliminate the percentage of the fee associated with these accounts. See 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 that 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. See id . at 112-13. Analysis
The State argues that Appellant waived his right to consideration of this issue because he failed to appeal timely the assessment of costs at the time the trial court originally entered its order placing him on community supervision.
Where an appellant fails to file a notice of appeal within thirty days of being placed on deferred adjudication community supervision, an appeal raising issues concerning court costs after final adjudication is not timely with respect to the court costs that were assessed in the order of deferred adjudication. See Perez v . State , 424 S.W.3d 81, 85 (Tex. Crim. App. 2014); see also Wiley v . State , 410 S.W.3d 313, 318 (Tex. Crim. App. 2013) (defendant whose community supervision was revoked forfeited challenge to the court appointed attorney fees as court costs by failing to bring direct appeal from order originally imposing community supervision); Manuel v. State , 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999).
When Appellant pleaded "guilty" and was placed on deferred adjudication community supervision, he explicitly waived his right to appeal. The record further reflects that Appellant acknowledged in writing his obligation to pay court costs as a condition of his community supervision. The trial court's deferred adjudication order sets forth the amount of court costs at $289.00. Thus, we conclude that Appellant waived his right to appeal the assessment of the costs at issue. See Perez , 424 S.W.3d at 85; Wiley , 410 S.W.3d at 318. Appellant's sole issue is overruled.
DISPOSITION
Having overruled Appellant's sole issue, we affirm the trial court's judgment.
GREG NEELEY
Justice Opinion delivered January 10, 2018.
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. 114-0098-17)
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.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.