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Dulin v. State

Court of Appeals of Texas, Third District, Austin

August 14, 2019

Bryant Edward Dulin, Appellant
v.
The State of Texas, Appellee

          FROM THE 424TH DISTRICT COURT OF BURNET COUNTY NOS. 46489, 46491, THE HONORABLE EVAN C. STUBBS, JUDGE PRESIDING

          Before Justices Goodwin, Baker, and Kelly

          OPINION

          CHARI L. KELLY, JUSTICE

         A jury found appellant Bryant Edward Dulin guilty of one count of indecency with a child, nine counts of aggravated sexual assault of a child, one count of continuous sexual abuse of a child under the age of 14, and one count of "super" aggravated sexual assault of a child. The jury assessed punishment at 20 years' imprisonment and a $5, 000 fine for the count of indecency with a child, 60 years' imprisonment and a $5, 000 fine for each count of aggravated sexual assault of a child, 50 years' imprisonment for the count of continuous sexual abuse of a child under the age of 14, and 35 years' imprisonment and a $5, 000 fine for the count of "super" aggravated sexual assault. The trial court sentenced Dulin in accordance with the jury's verdicts. The judgment for the count of indecency with a child assesses court costs of $589, and the judgment for "super" aggravated sexual assault of a child assesses court costs of $639.

         In two appellate issues, Dulin contends that the time payment fee assessed against him must be reduced because a portion of it is unconstitutional and that duplicative court costs must be deleted.[1] We will modify the judgments of convictions to reduce the time payment fee and delete duplicative court costs and affirm the convictions as modified.

         Time Payment Fee

         In his first appellate issue, Dulin contends that the $25 time payment fee assessed against him should be reduced by $22.50 because 90% of the fee is facially unconstitutional.[2]"A facial challenge is an attack on the statute itself as opposed to a particular application." Salinas v. State, 523 S.W.3d 103, 106 (Tex. Crim. App. 2017). "Except when First Amendment freedoms are involved, a facial challenge to a statute is a challenge to the statute in all of its applications." Id. "Whether a statute is facially constitutional is a question of law that we review de novo." Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013).

         The time payment fee is mandated by statute. The Local Government Code provides:

(a) A person convicted of an offense shall pay, in addition to all other costs, a fee of $25 if the person:
(1) has been convicted of a felony or misdemeanor; and
(2) pays any part of a fine, court costs, or restitution on or after the 31st day after the date on which a judgment is entered assessing the fine, court costs, or restitution.
(b) Except as provided by Subsection (c-1), the treasurer shall send 50 percent of the fees collected under this section to the comptroller. The comptroller shall deposit the fees received to the credit of the general revenue fund.
(c) Except as provided by Subsection (c-1), the treasurer shall deposit 10 percent of the fees collected under this section in the general fund of the county or municipality for the purpose of improving the efficiency of the administration of justice in the county or municipality. The county or municipality shall prioritize the needs of the judicial officer who collected the fees when ...

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