Michael Andrew Horn v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 30, 2021
• Docket: 03-19-00148-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

ON REMAND

NO. 03-19-00148-CR

Michael Andrew Horn, Appellant

v.

The State of Texas, Appellee

FROM THE 33RD DISTRICT COURT OF LLANO COUNTY NO. CR7580, THE HONORABLE J. ALLAN GARRETT, JUDGE PRESIDING

MEMORANDUM OPINION

A jury convicted appellant Michael Andrew Horn of the second-degree felony

offense of aggravated assault with a deadly weapon, see Tex. Penal Code §§ 22.01(a)(2),

.02(a)(2), and sentenced appellant to confinement for twenty years in the Institutional Division of

the Texas Department of Criminal Justice, see id. § 12.33. In the bill of costs, the trial court

assessed appellant a $25 time payment fee.

In his sole appellate issue, appellant did not challenge the jury’s verdict but

challenged 90% of the time payment fee that was assessed against him. On February 24, 2021,

this Court sustained his issue and modified the trial court’s judgment to reduce the assessed court

costs by $22.50 and, as modified, affirmed the judgment of conviction. See Horn v. State, No. 03-19-00148-CR, 2021 WL 710735, at *1 (Tex. App.—Austin Feb. 24, 2021, pet. granted)

(mem. op., not designated for publication).

Citing its holding in Dulin v. State, 620 S.W.3d 129 (Tex. Crim. App. 2021), the

Texas Court of Criminal Appeals granted review on its own motion on the following ground:

“Should the ‘Time Payment Fee’ be struck as prematurely assessed?” See Horn v. State,

No. PD-0209-21, 2021 WL 1936537, at *1 (Tex. Crim. App. May 12, 2021) (not designated for

publication). The Court of Criminal Appeals cited its holding in Dulin that “the time payment

fee was assessed prematurely because the pendency of appeal suspends the obligation to pay

court costs”; explained that as a result, there was no need to reach the constitutional arguments

concerning the time payment fee; vacated this Court’s judgment; and remanded the case to this

Court for proceedings consistent with its opinion. See id.

Following the directive from the Court of Criminal Appeals, we conclude that the

$25 time payment fee should be struck from the judgment of conviction as prematurely assessed

without reaching appellant’s challenge to the constitutionality of 90% of the fee. Thus, we

modify the trial court’s judgment of conviction to strike the $25 assessed time payment fee and,

as modified, we affirm the judgment of conviction.

__________________________________________ Melissa Goodwin, Justice

Before Justices Goodwin, Kelly, and Smith

Modified and, As Modified, Affirmed On Remand

Filed: July 30, 2021

Do Not Publish