Anthony Vandenabeelen v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 10, 2023
• Docket: 12-22-00092-CR
• Status: Published

Opinion

NO. 12-22-00092-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ANTHONY VANDENABEELEN, § APPEAL FROM THE 87TH APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS, APPELLEE § ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION Anthony Vandenabeelen appeals from his conviction for aggravated sexual assault. In one issue, Appellant challenges the time payment fee included in the court costs the trial court assessed against him. We modify the trial court’s judgment and the bill of costs to remove the time payment fee, and affirm the judgment as modified.

BACKGROUND On June 14, 2021, Appellant entered an open plea of “guilty” to the offense of aggravated sexual assault. The trial court adjudicated Appellant “guilty,” and following a March 17, 2022, hearing on sentencing, assessed punishment of forty years of imprisonment. The trial court also ordered Appellant to pay $305.00 in court costs. Neither the trial court’s judgment nor the bill of costs available at the time were itemized. This appeal followed. The Anderson County District Clerk’s itemized bill of costs was certified on November 16, 2022, several months after sentencing, and included a $15.00 time payment fee as part of the $305.00 in total court costs. ASSESSMENT OF TIME PAYMENT FEE In his sole point of error, Appellant contends that the trial court prematurely assessed the time payment fee against him in its judgment. The State concedes the issue. Standard of Review and Applicable Law On appeal, courts review the assessment of court costs to determine whether a basis exists for the cost, rather than whether there was sufficient evidence offered at trial to prove each cost. Johnson v. State, 423 S.W.3d 385, 389–90 (Tex. Crim. App. 2014); see also Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011) (court costs are not part of a sentence, but “a nonpunitive recoupment of the costs of judicial resources expended in connection with the trial of the case”). Court costs may not be assessed against a criminal defendant for which a cost is not expressly provided by law. See TEX. CODE CRIM. PROC. ANN. art. 103.002 (West 2021). When a trial court improperly includes amounts in assessed court costs, the proper appellate remedy is to reform the judgment to delete the improper fees. Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013). The Texas Code of Criminal Procedure requires that a person convicted of a felony or misdemeanor pay a reimbursement fee of $15.00 if the person fails to pay any part of a fine, court costs, or restitution within 30 days after the court enters the judgment ordering such payment. TEX. CODE CRIM. PROC. ANN. art. 102.030 (West 2021). However, in Dulin v. State, 620 S.W.3d 129 (Tex. Crim. App. 2021), the Texas Court of Criminal Appeals found that a pending appeal suspends a defendant’s duty to pay fines, court costs, and restitution, which duty is triggered only by a final judgment. Dulin, 620 S.W.3d at 133. Thus, the pendency of an appeal “stops the clock” for the purposes of the time payment fee. Id. A trial court’s assessment of a time payment fee before the appellate mandate issues therefore lacks any basis and is premature. See id.; Pruitt v. State, 646 S.W.3d 879, 886 (Tex. App.—Amarillo 2022, no pet.). Analysis

Appellant’s timely notice of this appeal suspended his duty to pay the court costs imposed in the judgment adjudicating his guilt and stopped the figurative clock on the thirty-day payment period which would trigger the time payment fee. Dulin, 620 S.W.3d at 133. These appellate proceedings are still pending, and no court of appeals has issued a mandate. Additionally, Appellant and the State concur that the trial court’s assessment of the time payment fee was premature.

2 This Court has the authority to modify incorrect judgments when it has available the information necessary to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27– 28 (Tex. Crim. App. 1993). Because the imposition of the time payment fee is premature until thirty days after the resolution of an appeal, the time payment fee assessed herein must be struck. We sustain Appellant’s sole issue.

CONCLUSION Having sustained Appellant’s only issue, we modify both the bill of costs and the trial court’s judgment to remove the time payment fee. Our ruling is without prejudice to future assessment of the time payment fee if, more than thirty days after our mandate issues, Appellant fails to completely pay any fine, court costs, or restitution he owes. As modified, we affirm the trial court’s judgment.

BRIAN HOYLE Justice

Opinion delivered May 10, 2023. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

3 COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MAY 10, 2023

ANTHONY VANDENABEELEN, Appellant V. THE STATE OF TEXAS, Appellee

Appeal from the 87th District Court of Anderson County, Texas (Tr.Ct.No. 87CR-20-34854)

THIS CAUSE came to be heard on the appellate record and the briefs filed herein, and the same being considered, it is the opinion of this court that the bill of costs and judgment of the court below should be modified and as modified, affirmed. It is therefore ORDERED, ADJUDGED and DECREED that the bill of costs and judgment of the court below be modified to remove the time payment fee; in all other respects the judgment of the trial court is affirmed; and that this decision be certified to the court below for observance. Brian Hoyle, Justice. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.