Opinion
No. 06-20-00063-CR
11-13-2020
ABIGAIL VILLEGAS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 241st District Court Smith County, Texas
Trial Court No. 241-0447-19 Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
Following her indictment for the first-degree-felony offense of aggravated assault with a deadly weapon, Abigail Villegas pled guilty pursuant to a plea agreement with the State. The trial court accepted her plea and, in accordance with the plea agreement, deferred a finding of Villegas's guilt and placed her on community supervision for a period of ten years. Approximately six months later, the State filed a motion to adjudicate guilt, alleging, among other things, that Villegas committed the offense of driving while intoxicated. Villegas pled true to the allegations in the State's motion. The trial court adjudicated Villegas's guilt and sentenced her to a period of twenty years' incarceration.
Originally appealed to the Twelfth Court of Appeals in Tyler, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV'T CODE ANN. § 73.001. We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3.
On appeal, Villegas claims that her twenty-year sentence constitutes cruel and unusual punishment and that the statute imposing the time payment fee reflected in the bill of costs is facially unconstitutional. Because we conclude that (1) Villegas failed to preserve her claim of cruel and unusual punishment and (2) the statute imposing a portion of the time payment fee of which she complains is facially unconstitutional, we delete a portion of the time payment fee from the judgment and bill of costs and affirm the judgment, as modified.
(1) Villegas Failed to Preserve Her Claim of Cruel and Unusual Punishment
Villegas complains that her twenty-year sentence is disproportionate and therefore violates the Eighth Amendment to the United States Constitution and Article I, Section 13, of the Texas Constitution. See U.S. CONST. amend. VIII; TEX. CONST. art. 1, § 13.
To preserve error relating to the severity of punishment, including a claim that the sentence imposed constitutes cruel and unusual punishment, a defendant is required to object to her sentence in the trial court. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (failure to preserve claim of cruel and unusual punishment waived by failure to object in trial court); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (forfeiture with regard to rights under the United States Constitution); Contreras v. State, 369 S.W.3d 689 (Tex. App.—Tyler 2012, no pet.). Because Villegas did not raise any issue in the trial court regarding the severity of her punishment at the time it was imposed or in a motion for new trial, she has failed to preserve error on this issue. See TEX. R. APP. P. 33.1(a)(1)(A).
Villegas concedes that she did not raise this issue in the trial court and acknowledges caselaw requiring preservation. She, nevertheless, raised this appellate issue in the interest of fairness and due process.
(2) The Time Payment Fee
The bill of costs in the clerk's record reflects the assessment of a time payment fee in the amount of $25.00. In a paragraph following the total listing of costs, the bill indicates that "[a]n additional time payment fee of $15.00 will be assessed if any part of a fine, court costs, or restitution is paid on or after the 31st day after the date the judgment assessing the fine, court costs or restitution is entered." Villegas complains that the portions of these fees assessed pursuant to Section 133.103, subsections (b) and (d), of the Texas Local Government Code are facially unconstitutional. See Act of June 2, 2003, 78th Leg., R.S., ch. 209, § 62, sec. 133.103, 2003 Tex. Gen. Laws 979, 996-97 (amended 2005, 2011, 2013, 2019) (current version at TEX. CODE CRIM. PROC. art. 102.030).
The Legislature recently repealed Section 133.103, subsections (b) and (d), of the Local Government Code, Act of May 23, 2019, 86th Leg., R.S., ch. 1352, § 4.04, 2019 Tex. Sess. Law Serv. 3982, 4034-35, and transferred Section 133.103 from the Local Government Code to Chapter 102 of the Texas Code of Criminal Procedure; re-designated Section 133.103 as Article 102.030; and amended the language of the statute to delete the provisions that were previously held to be unconstitutional, Act of May 23, 2019, 86th Leg., R.S., ch. 1352, § 2.54, 2019 Tex. Sess. Law Serv. 3982, 4010-11 (codified at TEX. CODE CRIM. PROC. art. 102.030). The Legislature provided that the changes "apply only to a cost, fee, or fine on conviction for an offense committed on or after [January 1, 2020]." Act of May 23, 2019, 86th Leg., R.S., ch. 1352, § 5.01, 2019 Tex. Sess. Law Serv. 3982, 4035-36. The record in this case shows that the offense occurred prior to January 1, 2020. Therefore, the former statute, rather than the revisions, applies in this case.
A challenge to the constitutionality of court costs may be raised for the first time on appeal. See London v. State, 490 S.W.3d 503, 506-07 (Tex. Crim. App. 2016) (citing Johnson v. State, 423 S.W.3d 385, 390-91 (Tex. Crim. App. 2014) (challenge to imposition of costs for first time on appeal permissible "when those costs are not imposed in open court and the judgment does not contain an itemization of the imposed costs")); Landers v. State, 402 S.W.3d 252, 255 (Tex. Crim. App. 2013). Although the trial court indicated that "court costs are ordered paid," those costs were not itemized by the court, and an itemization of those costs was not included in the judgment. We may, therefore, address this issue for the first time on appeal. See Johnson, 423 S.W.3d at 390-91.
We review de novo the issue of whether a statute is facially constitutional. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). "In reviewing the constitutionality of a statute, we must presume that the statute is valid and that the legislature did not act unreasonably or arbitrarily in enacting it." Belcher v. State, 474 S.W.3d 840, 843 (Tex. App.—Tyler 2015, no pet.) (citing Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978)). Appellant bears the burden of showing that the statute is unconstitutional. Id.
In accordance with the statute, a defendant shall pay a time payment fee of $25.00 if the defendant 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." Act of June 2, 2003, 78th Leg., R.S., ch. 209, § 62, sec. 133.103, 2003 Tex. Gen. Laws 979, 996-97 (amended 2005, 2011, 2013, 2019) (current version at TEX. CODE CRIM. PROC. art. 102.030). The statute provides that fifty percent of the fee shall be paid to the comptroller for deposit into the general revenue fund, forty percent of the fee shall be paid to the county or municipal general revenue account, and ten percent of the fee shall be paid to the county or municipal general fund "for purposes of improving the efficiency of the administration of justice." Id. Villegas challenges those portions—or ninety percent—of the fee allotted to the general revenue fund and to the county or municipal general revenue account. She further challenges the additional $15.00 fee added to the bill of costs after the cumulative total.
Villegas's challenge to the time payment fee rests on a claimed violation of the separation-of-powers doctrine enshrined in the Texas Constitution. See TEX. CONST. art. 2, § 1. This doctrine prohibits one branch of government from assuming a power '"more properly attached' to another branch." Lo, 424 S.W.3d at 28. "[T]he collection of fees in criminal cases is a part of the judicial function 'if the statute under which court costs are assessed (or an interconnected statute) provides for an allocation of such court costs to be expended for legitimate criminal justice purposes.'" Salinas v. State, 523 S.W.3d 103, 107 (Tex. Crim. App. 2017) (quoting Peraza v. State, 467 S.W.3d 508, 517 (Tex. Crim. App. 2015)).
In Brown v. State, No. 06-20-00017-CR, 2020 WL 3865736, at *3 (Tex. App.—Texarkana July 9, 2020, no pet.) (mem. op., not designated for publication), we applied these principles to the issue now before us and reasoned that, because the statute directed that ninety percent of the funds be "sent to a general revenue fund without limitations or restrictions, . . . the time payment fee [is] little more than a late fee that ha[s] nothing to do with reimbursing the county or State for the defendant's criminal trial or criminal resources generally." Id. (citing Johnson v. State, 573 S.W.3d 328, 340 (Tex. App.—Houston [14th Dist.] 2019, pet. filed)). Consequently, we concluded that those provisions of the statute directing allocation of ninety percent of the time payment fee to the "'general revenue fund without limitations or restrictions'. . . is facially unconstitutional." Id. We likewise so conclude in this case. See 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 (Tex. App.—Austin 2019, pet. granted). We therefore modify the bill of costs by changing the $25.00 time payment to $2.50. We likewise modify the judgment by deleting that reduction of $22.50 from the total assessed costs.
Although this unpublished case has no precedential value, we may take guidance from it "as an aid in developing reasoning that may be employed." Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref'd).
As explained in Johnson, this holding does not apply to the ten percent allocation specified in former Section 133.103(c).
The State has filed a brief in which it concedes that the $25.00 time payment fee is unconstitutional.
Villegas further complains of the additional time payment fee of $15.00 added at the bottom of the bill of costs after the total costs had been tabulated. Presumably, this additional $15.00 fee was added to the bill in erroneous reliance on Article 102.030 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 102.030. As previously explained, the former cost statute applies to this case. Therefore, assuming the additional $15.00 fee was assessed in accordance with Article 102.030, such assessment was erroneous. And, even if the additional $15.00 assessment was not based on Article 102.030, such assessment was nevertheless erroneous because it was not authorized by statute. Consequently, we modify the bill of costs by deleting the additional $15.00 time payment fee.
This article permits the collection of a $15.00 time payment fee on the same basis as the former statute, but specifically requires the fee to be deposited "in a separate account in the general fund of the county or municipality" 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." TEX. CODE CRIM. PROC. ANN. art. 102.030(b).
We modify the bill of costs by changing the $25.00 time payment fee to $2.50 and by deleting the $15.00 time payment fee. In addition, we modify the judgment by deleting the total unauthorized time payment costs of $22.50 and to reflect total costs of $346.50. We affirm the trial court's judgment, as modified.
Josh R. Morriss, III
Chief Justice Date Submitted: September 16, 2020
Date Decided: November 13, 2020 Do Not Publish