Simmons, D'Warren Lamar

• Court: Court of Criminal Appeals of Texas
• Decided: May 12, 2021
• Docket: PD-1264-19
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-1264-19

D’WARREN LAMAR SIMMONS, Appellant

V.

THE STATE OF TEXAS

ON STATE’S AND APPELLANT’S PETITIONS FOR DISCRETIONARY REVIEW FROM THE WACO COURT OF APPEALS MCLENNAN COUNTY

Per curiam. YEARY, J., filed a dissenting opinion in which SLAUGHTER, J., joined.

OPINION

Appellant was convicted of assault family violence with a prior conviction for

assault family violence and sentenced to 75 years in prison. In the bill of costs, the trial

court assessed Appellant a $25 time payment fee. See TEX. LOCAL GOV’T CODE § D’WARREN LAMAR SIMMONS - 2

133.103. On appeal, the Court of Appeals struck a portion of that fee as being

unconstitutional. Simmons v. State, No. 10-18-00269-CR (Tex. App. – Waco Nov. 27,

2019).

The State has filed a petition for discretionary review arguing that the time

payment fee was prematurely assessed. We recently handed down our opinion in Dulin v.

State, Nos. PD-0856-19 & PD-0857-19, 2021 Tex. Crim. App. LEXIS 273 (Tex. Crim.

App. Mar. 31, 2021), in which we held that the time payment fee was assessed

prematurely because the pendency of appeal suspends the obligation to pay court costs.

Accordingly, we grant ground one of the State’s petition for discretionary review,

vacate the judgment of the Court of Appeals, and remand this case to the Court of

Appeals for proceedings consistent with this opinion. The State’s other ground is refused.

Appellant’s petition is also refused.

DATE DELIVERED: May 12, 2021 DO NOT PUBLISH