Michael Wayne Fry v. the State of Texas

NO. 12-21-00085-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

MICHAEL WAYNE FRY, § APPEAL FROM THE 7TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION
Michael Wayne Fry appeals his conviction for aggravated assault of a public servant. In
a single issue, he contends the trial court erred by imposing certain court costs. We modify and
affirm as modified.

BACKGROUND
In May 2020, Appellant was indicted for the offense of aggravated assault against a
public servant allegedly occurring on March 19, 2020. 1 Appellant pleaded “not guilty,” and the
matter proceeded to a jury trial. The jury found Appellant “guilty” as charged in the indictment
and found that he used or exhibited a deadly weapon. The jury also assessed punishment at life
in prison and a $10,000 fine. This appeal followed.

COURT COSTS
In his sole issue, Appellant urges the trial court improperly assessed certain court costs in
its judgment. Specifically, he argues the trial court erroneously assessed costs for the county and
state “judicial support fee” and “records management & preservation fee.” The State concedes
the error.

1
See TEX. PENAL CODE ANN. § 22.02(b)(2)(B) (West Supp. 2021).
Standard of Review and Applicable Law
We review the assessment of court costs on appeal to determine if there is a basis for the
cost, not to determine if there was sufficient evidence offered at trial to prove each cost, and
traditional Jackson v. Virginia evidentiary-sufficiency principles do not apply. Johnson v.
State, 423 S.W.3d 385, 389-90 (Tex. Crim. App. 2014) (citing Jackson v. Virginia, 443 U.S.
307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). Appellant need not have objected at trial to
raise a claim challenging the bases of assessed costs on appeal. Id. at 391. 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). 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 2018).
Analysis
The judgment, bill of costs, and Order to Withdraw Funds show that Appellant was
assessed $251.50 in court costs. This includes the following fees: $0.60 for the “Judicial Support
Fee – (County),” $5.40 for the “Judicial Support Fee – (State),” and $2.50 for the “Records
Management & Preservation Fee.” These costs were authorized under former Section 133.105
of the Texas Local Government Code. See TEX. LOC. GOV’T CODE ANN. § 133.105(a) (West
2019), repealed by Act of May 23, 2019, 86th Leg., R.S., ch. 1352, § 1.19(12), 2019 Tex. Sess.
Law Serv. 3982 (eff. Jan. 1, 2020). During its 86th Regular Session, the Texas Legislature
comprehensively revised the statutory array of criminal court costs and fees imposed on
conviction (the Act). See generally Act of May 23, 2019, 86th Leg., R.S., ch. 1352, 2019 Tex.
Sess. Law Serv. 3982 (eff. Jan. 1, 2020). Yet, “[e]xcept as otherwise provided by” the Act, “the
changes in the law made by” the Act “apply only to a cost, fee, or fine on conviction for an
offense committed on or after the effective date of” the Act, that is January 1, 2020. Act of May
23, 2019, 86th Leg., R.S., ch. 1352, § 5.01, 2019 Tex. Sess. Law Serv. 3982, 4035–36. An
offense committed before the Act’s effective date “is governed by the law in effect on the date
the offense was committed, and the former law is continued in effect for that purpose.” Id.
Appellant’s offense was alleged to be March 19, 2020. Therefore, the former Section
133.105(a) does not apply. Accordingly, we will modify the trial court’s judgment, bill of costs,

2
and Order to Withdraw Funds to delete these fees. See Sturdivant v. State, 445 S.W.3d 435, 443
(Tex. App.—Houston [14th Dist.] 2014, pet. ref’d). We sustain Appellant’s sole issue. 2

DISPOSITION
Having sustained Appellant’s sole issue, we modify the trial court’s judgment, bill of
costs, and Order to Withdraw Funds to reflect that Appellant’s court costs are $243 by deleting
the “Judicial Support Fee – (County),” “Judicial Support Fee – (State),” and “Records
Management & Preservation Fee.” We affirm the judgment as modified.

BRIAN HOYLE
Justice

Opinion delivered March 9, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

2
We note that the bill of costs includes the Local Consolidated Fee on Conviction of Felony authorized by
Section 134.101, which apparently replaced former Section 133.105. See TEX. LOC. GOV’T CODE ANN. § 134.101
(West 2021).

3
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MARCH 9, 2022

NO. 12-21-00085-CR

MICHAEL WAYNE FRY,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007-0835-20)

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 judgment of the
court below should be modified and as modified, affirmed.

It is therefore ORDERED, ADJUDGED and DECREED that the
judgment, bill of costs, and Order to Withdraw Funds of the court below be modified to reflect
that Appellant’s court costs are $243 by deleting the “Judicial Support Fee – (County),” “Judicial
Support Fee – (State),” and “Records Management & Preservation 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.