Adrian Fernando Uribeta v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 15, 2023
• Docket: 07-23-00077-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-23-00077-CR

ADRIAN FERNANDO URIBETA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 47th District Court Randall County, Texas Trial Court No. 31500A, Honorable Dee Johnson, Presiding

August 15, 2023 MEMORANDUM OPINION Before PARKER and DOSS and YARBROUGH, JJ.

Appellant, Adrian Fernando Uribeta, appeals the amount of fines assessed and a

“time payment fee” charged against him in judgments convicting him of aggravated

assault with a deadly weapon and theft of a firearm. We modify the judgments and affirm. BACKGROUND

Because both of Appellant’s issues challenge the assessment of charges

contained in the judgments’ bill of costs,1 we will limit our discussion of the facts to those

relevant to these issues. After the jury found Appellant guilty as noted above, it returned

verdicts assessing a $2,000 fine for each charge. When the trial court entered the

judgments, it ordered the sentences to run concurrently. However, the attached bill of

costs, which was incorporated by reference into the judgments, cumulates the fines and

reflects that Appellant owes $4,000 in fines. Further, the bill of costs charges Appellant

a $15 “time payment fee.” Appellant timely appealed. By his appeal, he challenges the

cumulated $4,000 fine and $15 time payment fee.2

ANALYSIS

Preservation of Error

Initially, we must assess whether Appellant has properly preserved his complaints

regarding charges assessed in the bill of costs. Where, as here, the bill of costs was “not

prepared until weeks after judgment was entered[,] Appellant did not have the opportunity

to object to this fee when it was imposed.” Johnson v. State, 537 S.W.3d 929, 929 (Tex.

Crim. App. 2017) (per curiam). In such a situation, “an appellant may not be faulted for

1 While the trial court entered separate judgments for each count for which Appellant was found

guilty, each of these judgments were entered in the same trial court cause number and the bill of costs refers to this cause number and purports to address all costs associated with each count.

2 The State filed a letter, which essentially indicated that it would not be filing a response on the

merits of Appellant’s appeal. 2 failing to object when he or she was not given the opportunity to do so.” Id. As such, we

conclude that Appellant’s challenges are properly before us.

Cumulated Fines

By his first issue, Appellant contends that it was error for the bill of costs to

cumulate the $2,000 fines in each case after the trial court ordered that the sentences run

concurrently.

The Court of Criminal Appeals has clarified that, “where multiple fines are

assessed in a same-criminal-episode prosecution and they are ordered to be discharged

concurrently, they discharge in the same manner as concurrent terms of confinement—

the defendant pays the greatest amount of fine but receives credit for satisfying all of the

multiple concurrent fines.” Anastassov v. State, 664 S.W.3d 815, 822 (Tex. Crim. App.

2022).

Because the jury assessed identical $2,000 fines for each offense and the trial

court ordered that the sentences run concurrently, we sustain Appellant’s first issue and

modify the certified bill of costs to assess a total of $2,000 in fines against Appellant.

Time Payment Fee

By his second issue, Appellant identifies that the bill of costs assesses a $15 time

payment fee but contends that the assessment of this fee while an appeal is pending is

premature and, consequently, erroneous.

A time payment reimbursement fee of $15 is authorized if the convicted person

has not paid all fees and costs by the thirty-first day after entry of the judgment assessing 3 the fees and costs. TEX. CRIM. PROC. CODE ANN. art. 102.030. However, a time payment

fee, like the one imposed here, must be “struck for being prematurely assessed because

a defendant’s appeal suspends the duty to pay court costs and therefore suspends the

running of the clock for the purposes of the time payment fee.” Evans v. State, No. 06-

22-00174-CR, 2023 Tex. App. LEXIS 3183, at *3 (Tex. App.—Texarkana May 11, 2023,

no pet.) (mem. op., not designated for publication) (quoting Dulin v. State, 620 S.W.3d

129, 129 (Tex. Crim. App. 2021)). When a time payment fee has been assessed while

an appeal remains pending, the fee is premature and should be deleted in its entirety,

without prejudice to it being assessed if it later becomes due. Id.

Because the bill of costs assessed a $15 time payment fee while the present

appeal was pending, we sustain Appellant’s second issue and modify the certified bill of

costs by deleting the $15 charge for “time payment fee.”

CONCLUSION

We sustain both of Appellant’s issues, modify the certified bill of costs to reflect

that Appellant is liable for $2,000 for fines and delete the $15 time payment fee, and affirm

the judgments of the trial court as modified.

Judy C. Parker Justice

Do not publish.