Opinion
NO. 03-19-00105-CR
08-13-2020
Jackie Lett, Appellant v. The State of Texas, Appellee
FROM THE 33RD DISTRICT COURT OF BURNET COUNTY
NO. 48548 , THE HONORABLE J. ALLAN GARRETT, JUDGE PRESIDING MEMORANDUM OPINION
A jury convicted Jackie Lett for seventeen counts of the second-degree felony offense of sexual assault of a child committed in 2017 against his stepdaughter. See Tex. Penal Code § 22.011(a)(2), (f). The jury assessed punishment at fifteen years' imprisonment on Count 1 and fifteen years' imprisonment on Count 17. See id. § 12.33(a). As to each of Counts 2 through 16, the jury assessed punishment at ten years' imprisonment but recommended that the court suspend those assessed sentences and place Lett on community supervision. See Tex. Code Crim. Proc. art. 42A.055. After a motion by the State, the district court sentenced Lett to consecutive punishments specifying that "Count 1 will be served first, then Count 17, and then the following counts will run concurrently after the first two, after 1 and 17."
In two issues, Lett contends that the time-payment fee assessed against him must be reduced because a portion of it is unconstitutional and that the judgments in Counts 2 through 16 should be modified to reflect how the sentences will run. We will modify the judgments of conviction to reduce the time-payment fee and to reflect how the sentences in Counts 2 through 16 will run, and we will affirm the judgments of conviction as modified.
DISCUSSION
Lett's appellate issues relate only to the imposition of 90% of the time-payment fee and to clerical errors on the face of the district court's judgments of conviction. Recitation of the facts underlying Lett's convictions is unnecessary to our disposition of these issues. See Tex. R. App. P. 47.1 (requiring issuance of opinion that is brief as possible but addresses every issue raised and necessary to final disposition of appeal).
90% of Time-Payment Fee
In his first issue, Lett contends that the $25.00 time-payment fee assessed against him as part of his court costs should be reduced by $22.50 because 90% of the time-payment fee is facially unconstitutional. The applicable statutory provisions—former subsections 133.103(b) and (d) of the Texas Local Government Code—direct this percentage of the fee to be deposited into a general fund, at the state or local level, without limitation. See Act of June 1, 2003, 78th Leg., R.S., ch. 209 § 62(a), sec. 133.103(b) (requiring 50% of fees collected under this section to be sent to comptroller for deposit "to the credit of the general revenue fund"), (d) (requiring remainder of fees collected under this section to be deposited "in the general revenue account of the county or municipality"), 2003 Tex. Gen. Laws 979, 996-97, repealed by Act of May 23, 2019, 86th Leg., R.S., ch. 1352, § 2.54, 2019 Tex. Gen. Laws ___. Texas courts, including ours, have noted the distinction between a permissible court cost that is collected for some "legitimate criminal justice purpose" and an unconstitutional tax that is not. Salinas v. State, 523 S.W.3d 103, 109 n.26 (Tex. Crim. App. 2017); Johnson v. State, 573 S.W.3d 328, 340 (Tex. App.—Houston [14th Dist.] 2019, pet. filed); Dulin v. State, 583 S.W.3d 351, 353 (Tex. App.—Austin 2019, pet. granted).
The bill of costs in the record contains a $25.00 time-payment fee, itemized as three charges: $12.50, $2.50, and $10.00. Lett does not challenge the $2.50 charge.
New legislation effective January 1, 2020, deleted subsections (c) and (d) from section 133.103 of the Local Government Code and revised subsection (b) to provide that all fees collected under this section are "to be used for the purpose of improving the collection of outstanding court costs, fines, reimbursement fees, or restitution or improving the efficiency of the administration of justice in the county or municipality." See Act of May 23, 2019, 86th Leg., R.S., ch. 1352, § 2.54, 2019 Tex. Gen. Laws ___ (transferring section 133.103 of Local Government Code to article 102.030 of Code of Criminal Procedure). These amendments do not apply to Lett's 2017 offenses. See id. §§ 5.01 (amendments apply only to conviction for offense committed on or after Act's effective date), .04 (providing effective date of January 1, 2020).
Lett does not challenge former subsection 133.103(c) of the Local Government Code, addressing the remaining 10% of the time-payment fee. See Act of June 1, 2003, 78th Leg., R.S., ch. 209, § 62(a), sec. 133.103(c), 2003 Tex. Gen. Laws 979, 996-97 (requiring 10% of fees collected under section to be deposited in general fund of county or municipality "for the purpose of improving the efficiency of the administration of justice in the county or municipality"). The substance of section 133.103 was transferred to article 102.030 of the Code of Criminal Procedure effective January 1, 2020, but as we have noted, the former law applies here. See supra n.3.
We have held that these two subsections of the Local Government Code are facially unconstitutional because they violate the separation-of-powers provision in the Texas Constitution. Dulin, 583 S.W.3d at 353; Wells v. State, No. 03-18-00675-CR, 2020 Tex. App. LEXIS 4302, at *12-13, *16 (Tex. App.—Austin June 4, 2020, pet. filed) (mem. op., not designated for publication); see Tex. Const. art. II, § 1 (providing that no branch of government "shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted"). We follow our precedent holding that former subsections (b) and (d) of section 133.103 in the Local Government Code are facially unconstitutional. Dulin, 583 S.W.3d at 353; see Wells, 2020 Tex. App. LEXIS 4302, at *12-13, *16; see also Ovalle v. State, 592 S.W.3d 615, 617-18 (Tex. App.—Dallas 2020, pet. filed) (holding same); Johnson, 573 S.W.3d at 340 (holding same). Accordingly, we sustain Lett's first issue and modify the judgment of conviction in Count 1 to subtract $22.50 from his $649.00 in court costs.
Clerical Error in Judgments
In his second issue, Lett contends that there are clerical errors in the judgments of conviction for Counts 2 through 16 as to the district court's pronouncement about how the sentences will run.
At the conclusion of the punishment phase, the district court accepted the jury's verdict and sentenced Lett to fifteen years' imprisonment on Count 1, ten years' imprisonment on each of Counts 2 through 16 with each probated for ten years, and fifteen years' imprisonment on Count 17. After releasing the jury, the district court considered the State's motion to cumulate sentences. The State requested that the district court "stack" Counts 1 and 17 "to run first, and then the probation to follow after that." The district court granted the motion to cumulate and ordered that "Count 1 will be served first, then Count 17, and then the following counts will run concurrently after the first two, after 1 and 17."
The district court's judgments of conviction on Counts 1 and 17 are correct. The judgment on Count 1 orders punishment of fifteen years' imprisonment. The judgment on Count 17 orders that Lett's sentence of fifteen years' imprisonment shall run consecutive to Count 1 and specifies that "THE SENTENCE IN THIS COUNT SHALL NOT BEGIN UNTIL THE SENTENCE IMPOSED IN COUNT 1 SHALL HAVE CEASED TO OPERATE."
However, Lett's judgments of conviction for Counts 2 through 16 do not specify that these suspended sentences will run concurrently and do not state that they begin to run only after Lett has completed his sentence as to Count 17. Rather, the section of the judgments describing how the sentence shall run states "N/A," and the section of the judgments reserved for any "special findings or orders [that] apply" is blank. The State does not oppose modifying these judgments of conviction to reflect that Lett's suspended sentences in Counts 2 through 16 will run concurrently. See Tex. Code Crim. Proc. art. 42.01, § 1(19) (providing that judgment shall reflect terms of any order that sentence is to run cumulatively or concurrently with another sentence). Further, the State agrees with Lett that the judgments for Counts 2 through 16 should be modified—in the section providing for "special findings or orders"—to reflect the district court's order that the term of community supervision in each of those counts will begin when the judgment and the sentence imposed in Count 17 ceases to operate.
Each of the district court's judgments of conviction for Counts 2 through 16 are otherwise correct, ordering Lett's punishment of ten years' imprisonment and then suspending that sentence of imprisonment and placing Lett on community supervision for ten years.
We have the authority to modify incorrect judgments when the necessary information is available to do so. See Tex. R. App. P. 43.2(b) (authorizing court of appeals to modify trial court's judgment and affirm it as modified); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (concluding that rules of appellate procedure empower courts of appeals to reform judgments). Modification of the written sentence is proper to show the trial court's specificity when cumulating sentences. Banks v. State, 708 S.W.2d 460, 462 (Tex. Crim. App. 1986); Revels v. State, 334 S.W.3d 46, 56 (Tex. App.—Dallas 2008, no pet.) (modifying cumulation order with information from trial court's pronouncement of sentence); see Whitley v. State, No. 03-12-00763-CR, 2014 Tex. App. LEXIS 12186, at *10 (Tex. App.—Austin Nov. 7, 2014, no pet.) (mem. op., not designated for publication) (modifying written judgment of conviction to comply with oral pronouncement of punishment). Accordingly, we sustain Lett's second issue and modify the judgments of conviction for Counts 2 through 16 for consistency with the district court's pronouncement of punishment.
CONCLUSION
We modify Lett's judgment of conviction for Count 1 listing the court costs assessed to delete the $649.00 amount and add the amount of $626.50 (a difference of $22.50, for the reduction of the time-payment fee from $25.00 to $2.50). Additionally, consistent with the district court's pronouncement of punishment, we modify each of Lett's judgments of conviction on the suspended sentences for Count 2 through Count 16 to:
(1) delete "N/A" in the section describing how the sentence shall run and add this provision: "The sentences in Count 2 through Count 16 shall run concurrently" andWe affirm the judgments of conviction as modified.
(2) add to the section on special findings or orders this provision: "The sentence in this count shall not begin until the sentence imposed in Count 17 shall have ceased to operate."
/s/_________
Jeff Rose, Chief Justice Before Chief Justice Rose, Justices Baker and Triana Modified and as Modified, Affirmed Filed: August 13, 2020 Do Not Publish