Lajarvus Gerjuan Anthony v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 27, 2023
• Docket: 07-22-00161-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-22-00161-CR

LAJARVUS GERJUAN ANTHONY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 251st District Court Randall County, Texas, Trial Court No. 29917C, Honorable John Board, Presiding

June 27, 2023 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.

Appellant Lajarvus Gerjuan Anthony appeals his conviction for aggravated robbery

and asserts four issues. Three pertain to court costs assessed against him while one

involves an inaccurate statement in the judgment. We modify the judgment and bill of

costs and affirm as modified. Issue One

Appellant first argues that the trial court erred by assessing court-appointed

attorney’s fees against him. The assessment appears within the judgment and May 24,

2022 bill of costs. Because the State concedes the issue, the judgment and bill of costs

will be modified to remove the assessment.

Issue Three

Through his third issue, appellant argues that “the ‘time payment fee’ . . . is

premature and should be deleted without prejudice to subsequent assessment.”1 The

$15 fee expressly appears in the bill of costs, which bill the trial court referred to within

the judgment. Like the payment of fines, costs, and restitution, the payment of the time

payment fee is suspended while an appeal pends. Dulin v. State, 620 S.W.3d 129, 133

(Tex. Crim. App. 2021). Moreover, the duty to pay the fee depends on whether fines,

costs, and the like go unpaid within the time period mentioned in the statute; again, the

person has until the 31st day after the date on which the judgment is entered to avoid the

obligation. See TEX. CODE CRIM. PROC. ANN. art. 102.030 (a)(2). We further note that the

State also concedes the issue. Thus, the judgment and bill of costs will be modified to

exclude assessment of the fee at this time.

Issue Four

By his fourth issue, appellant asks that we correct the judgment to reflect that the

parties entered into no plea-bargain agreement. It currently insinuates that they did by

1 Per article 102.030 of the Texas Code of Criminal Procedure, a person convicted of an offense

“shall pay a reimbursement fee of $15” if he or she “pays any part of a fine, court costs, or restitution, or another reimbursement fee, on or after the 31st day after the date on which a judgment is entered assessing the fine, court costs, restitution, or other reimbursement fee.” TEX. CODE CRIM. PROC. ANN. art. 102.030(a)(2).

2 referencing a 75-year sentence under the topic “terms of plea bargain.” Because the

State responds that the “request should be honored so that the judgment is true and

correct,” we will modify the judgment to indicate that no plea bargain was involved.

Issue Two

Through issue two, appellant alleges that “[t]he ‘Time Payment’ fees assessed

pursuant to Texas Local Government Code §§ 133.103(b) and (d) are facially

unconstitutional and violate the Separation of Powers provision of the Texas

Constitution.”2 We overrule the issue.

As concluded in issue three, assessment of the time payment fee was premature.

Our modification of the judgment and bill of costs relieves appellant from the obligation.

This renders our consideration of his constitutional complaint problematic.

Generally, a constitutional attack may not be based on an apprehension of future

injury. Ex parte Spring, 586 S.W.2d 482, 485 (Tex. Crim. App. [Panel Op.] 1978); Ex

parte Gonzalez, 525 S.W.3d 342, 347 (Tex. App.—Houston [14th Dist. 2017, no pet.).

Simply put, determining the constitutionality of a statute is not ripe unless the record

shows that the challenged statute will be applied to the defendant. Ex parte Gonzalez,

525 S.W.3d at 347. Our having decided to excise the time payment fee from the judgment

and bill of costs, appellant is not obligated to pay it. Moreover, he will remain so

unobligated as long as 1) the duty to pay them remains suspended per Dulin and 2) he

pays his fines, court costs, and the like within the time period mentioned in the statute

after the suspension lifts. So, at this time, we cannot say that the statute will be applied

2 Apparently, the fee in question was imposed through § 133.103 of the Texas Local Government Code prior to 2021.

3 to him. This leads us to conclude that his constitutional attack upon article 102.030 of the

Code of Criminal Procedure is also premature or unripe.

In sum, we redact from the judgment and bill of costs the assessment upon

appellant of attorney’s fees and the time payment fee. We also modify the judgment to

reflect that no plea bargain was involved in the prosecution or conviction of appellant.

Having so modified the judgment, we also affirm it.

Brian Quinn Chief Justice

Do not publish.