Justin Wray Durham v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: September 9, 2021
• Docket: 07-20-00228-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-20-00228-CR ________________________

JUSTIN WRAY DURHAM, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 278th District Court Walker County, Texas Trial Court No. 29093; Honorable Hal R. Ridley, Presiding

September 9, 2021

MEMORANDUM OPINION Before PIRTLE and PARKER and DOSS, JJ.

Following a plea of not guilty, Appellant, Justin Wray Durham, was convicted by a

jury of driving while intoxicated, third or more, a third degree felony. 1 Punishment was

assessed by the trial court at five years confinement. The written judgment reflects

imposition of a $100 fine. Appellant presents a sole issue challenging imposition of the

fine as not being authorized by article 102.0185 of the Texas Code of Criminal

1 TEX. PENAL CODE ANN. § 49.09 (b)(2) (West Supp. 2020), § 12.34 (West 2019). Procedure. 2 For the reasons explained herein, we reform the judgment to delete the $100

fine. In all other respects, the judgment is affirmed.

BACKGROUND

Only a brief recitation of the facts is necessary given that Appellant’s sole

complaint is the imposition of a fine. On February 21, 2019, he was stopped for driving

irregularities. The stop resulted in a third conviction for driving while intoxicated. Although

Appellant was convicted by a jury, he elected to have the trial court assess punishment.

At the conclusion of the punishment hearing, the trial court’s oral pronouncement of

sentence was as follows:

[h]aving been found guilty . . . of the offense of driving while intoxicated third or more, the Court is going to sentence you to five years in the Texas Department of Criminal Justice Institutional Division . . . .

There was no oral pronouncement as to the fine. As relevant here, the summary portion

of the written judgment reflects the date of the offense as “02/21/2019” and the fine of

$100.

APPLICABLE LAW

Effective January 1, 2020, the Legislature amended article 102.0185 of the Texas

Code of Criminal Procedure, entitled “Fine for Intoxication Convictions: Emergency

Medical Services, Trauma Facilities, and Trauma Care Systems.” The statute provides

that when a person is convicted of an offense under chapter 49 of the Texas Penal Code

(Intoxication and Alcoholic Beverage Offenses), except for sections 49.02 and 49.031,

2 Originally appealed to the Tenth Court of Appeals, sitting in Waco, this appeal was transferred to this court by the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001 (West 2013). Should a conflict exist between precedent of the Tenth Court of Appeals and this court on any relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R. APP. P. 41.3.

2 the person shall pay a fine of $100 on conviction of that offense. TEX. CODE CRIM. PROC.

ANN. art. 102.0185 (West Supp. 2020). Prior to the amendment, article 102.0185 was

entitled “Additional Costs Attendant to Intoxication Convictions: Emergency Medical

Services, Trauma Facilities, and Trauma Care Systems.” See Act of May 23, 2019, 86th

Leg., R.S., ch. 1352, § 2.38, 2019 Tex. Gen. Laws 3981, 4005-06. The Legislature

substituted “fine” for “costs” throughout the statute. The Legislature expressed that the

amendment applied only to an offense committed on or after the effective date and the

former law applied to offenses committed before the effective date. Id. at 4035.

ANALYSIS

Appellant posits that the imposition of the $100 fine was not authorized under

article 102.0185 of the Code because the offense occurred on February 21, 2019, before

the amendment’s effective date of January 1, 2020. He requests that the portion of the

judgment imposing a fine be reversed rather than reformed on the basis that the

applicable version of former article 102.0185 has been declared unconstitutional. See

Richardson v. State, 606 S.W.3d 375, 384 (Tex. App.—Houston 2020, no pet.) (finding

former version of statute unconstitutional because the Legislature did not explicitly direct

that the funds be used for criminal justice purposes); Casas v. State, 524 S.W.3d 921,

926 (Tex. App.—Fort Worth 2017, no pet.) (finding former version of statute akin to a tax

and facially unconstitutional).

The State concedes the fine was improperly imposed but argues the judgment

should be reformed, not reversed, to delete the $100 fine. Also, the State notes that the

Tenth Court of Appeals (the transferor court) has not written on the constitutionality of

former article 102.0185. After an analysis of whether former article 102.0185 assessed

3 court costs for legitimate criminal justice purposes, 3 the State “agrees with Appellant that

this Court should find facially unconstitutional the application of” former article 102.0185

which provided for assessment of $100 in costs.

When, as here, a case can be resolved on non-constitutional grounds, we need

not address constitutional claims. See In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003)

(recognizing that courts only decide constitutional questions when issues on non-

constitutional grounds cannot be resolved). Having determined that the $100 fine was

improperly assessed, it is unnecessary for this court to address the constitutionality of

former article 102.0185. Appellant’s issue is sustained as to the $100 fine, but only to the

extent that we modify rather than reverse that portion of the judgment.

The trial court’s Judgment of Conviction by Jury is reformed to delete the

assessment of the $100 fine. The trial court is ordered to enter a Judgment Nunc Pro

Tunc to reflect this reformation. The trial court is directed to provide a copy of the

corrected judgment to the Institutional Division of the Texas Department of Criminal

Justice and the clerk of this court.

CONCLUSION

As reformed, the trial court’s judgment is affirmed.

Patrick A. Pirtle Justice

Do not publish.

3 See Salinas v. State, 523 S.W.3d 103, 109 (Tex. Crim. App. 2017) (clarifying that a statute that

imposes costs to offset future criminal justice expenses must expressly allocate those funds toward an account “to be expended for legitimate criminal justice purposes.” 4