Hollis Lane Willingham v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-21-00158-CR

HOLLIS LANE WILLINGHAM,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 369th District Court
Leon County, Texas
Trial Court No. 19-0032CR

OPINION

Hollis Lane Willingham was found guilty by a jury of the third-degree felony

offense of evading arrest or detention in a vehicle. See TEX. PENAL CODE ANN. § 38.04; see

also Ex parte Jones, 440 S.W.3d 628, 636 (Tex. Crim. App. 2014). Willingham pleaded true

to an enhancement allegation, and the jury assessed his punishment at eighteen years’

confinement in prison and a $10,000 fine. The trial court sentenced him accordingly.

Willingham contends on appeal that (1) the evidence is legally insufficient to prove that

he knew the attempted arrest or detention was lawful, (2) the trial court failed to instruct
the jury that the State must prove that he knew the arrest or detention was lawful, and

(3) the trial court assessed unauthorized court costs.

Issue One

Willingham argues that section 38.04 of the Penal Code requires proof that he

knew the attempted arrest or detention was lawful. The Court of Criminal Appeals

recently addressed this issue in Nicholson v. State, 682 S.W.3d 238 (Tex. Crim. App. 2024),

and set forth the elements of the evasion statute as follows: (1) a person (2) intentionally

flees (3) from a peace officer or federal special investigator (4) with knowledge he is a

peace officer or federal special investigator (5) with knowledge the peace officer or special

investigator is attempting to arrest or detain the defendant, and (6) the attempted arrest

or detention is lawful. Id. at 244–45. The Court of Criminal Appeals concluded that

section 38.04(a) of the Penal Code does not require the mens rea to be applied to the

lawfulness of the detention or arrest. Id.

We overrule Willingham’s first issue.

Issue Two

Next, Willingham argues that the trial court failed to instruct the jury that the State

was required to prove Willingham knew the arrest or detention was lawful. The purpose

of the jury charge is to instruct the jurors on all of the law that is applicable to the case.

Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012). “Because the charge is the

instrument by which the jury convicts, [it] must contain an accurate statement of the law

and must set out all the essential elements of the offense.” Id. (quoting Dinkins v. State,

894 S.W.2d 330, 339 (Tex. Crim. App. 1995)). The jury charge correctly followed the law

Willingham v. State Page 2
and did not require a finding that Willingham knew the attempted arrest or detention

was lawful. See Nicholson, 682 S.W.3d at 244–45.

We overrule Willingham’s second issue.

Issue Three

After abatement to the trial court and entry of a Judgment Nunc Pro Tunc,

Willingham argues that the trial court improperly imposed a $5.00 release reimbursement

fee, an $8.00 issuance of a precept fee, and a $15.00 time payment fee.

In Willingham’s challenge to the assessment of the $5.00 release reimbursement

fee, he contends that because he was never released and was continuously confined since

his initial arrest on the charge, the release reimbursement fee is improper. The trial

court’s judgment ordered the County Sheriff “to take and deliver Defendant to the

Director of the Correctional Institutions Division, TDCJ, for placement in confinement in

accordance with this judgment.” The County Sheriff was required to release Willingham

into the possession of the prison system. Willingham was properly assessed the $5.00

fee. See Briceno v. State, 675 S.W.3d 87, 97 (Tex. App.—Waco 2023, no pet.); Williams v.

State, 495 S.W.3d 583, 591–92 (Tex. App.—Houston [1st Dist.] 2016), pet. dism’d,

improvidently granted, No. PD-0947-16, 2017 WL 1493488 (Tex. Crim. App. Apr. 26, 2017)

(per curiam) (not designated for publication).

In Willingham’s challenge to the $8.00 issuance of a precept fee, he contends the

fee was improperly assessed because section 51.318 of the Government Code is not

applicable in criminal cases. Section 51.318 authorizes the clerk to collect an $8 fee for

issuing a subpoena or a writ in criminal cases. TEX. GOV’T CODE ANN. § 51.318(b)(1)–(2);

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see In re Ingram, 575 S.W.3d 367, 369 (Tex. Crim. App. 2019) (Yeary, J., concurring); Briceno,

675 S.W.3d at 97; Carnley v. State, 682 S.W.3d 287, 289 (Tex. App.—Waco 2023, no pet.);

Welch v. State, No. 10-21-00284-CR, 2023 WL 8633996, at *2 (Tex. App.—Waco Dec. 14,

2023, no pet.). In a criminal case, a capias is a writ. See TEX. CODE CRIM. PROC. ANN. art.

23.01. Section 51.318(c) provides that “[t]he fee is the obligation of the party to the suit or

action initiating the request.” TEX. GOV’T CODE ANN. § 51.318(c). In this case, there is no

record that Willingham applied for issuance of a subpoena or requested issuance of a

capias. Therefore, we delete the $8 issuance of a precept fee. See Briceno, 675 S.W.3d at

97; Carnley, 682 S.W.3d at 289; Welch, 2023 WL 8633996, at *2.

In Willingham’s challenge to the $15.00 time payment fee, he contends the fee was

improperly assessed because article 102.030 of the Code of Criminal Procedure does not

apply because the offense was committed in 2019. See TEX. CODE CRIM. PROC. art. 102.030;

see also Act of May 23, 2019, 86th Leg., R.S., ch. 1352, § 5.04, 2019 Tex. Gen. Laws at 3982,

4035.

In 2019, the Legislature overhauled the system of court costs in criminal cases and

the new law (the Cost Act) took effect on January 1, 2020. See Act of May 23, 2019, 86th

Leg., R.S., ch. 1352, § 5.04, 2019 Tex. Gen. Laws 3982, 4036; Bradshaw v. State, 675 S.W.3d

78, 84 (Tex. App.—Waco 2023, pet. granted). With respect to its effective date, the Cost

Act provides:

SECTION 5.01. Except as otherwise provided by this Act, the
changes in law made by this Act apply only to a cost, fee, or
fine on conviction for an offense committed on or after the
effective date of this Act. An offense committed before the
effective date of this Act is governed by the law in effect on

Willingham v. State Page 4
the date the offense was committed, and the former law is
continued in effect for that purpose. For purposes of this
section, an offense was committed before the effective date of
this Act if any element of the offense occurred before that
date.

Act of May 23, 2019, 86th Leg., R.S., ch. 1352, § 5.01, 2019 Tex. Gen. Laws 3982, 4035–36

(emphasis added).

In this case the judgment reflects that Willingham committed the charged offense

on March 29, 2019. Because the offense was committed before the January 1, 2020

effective date of the Cost Act, we apply the law in effect on the date the offense was

committed.

The law governing court costs on the date the offense was committed
included section 51.608 of the Texas Government Code, which provides the
following:

Notwithstanding any other law that establishes the amount
of a court cost collected by the clerk of a district, county, or
statutory county court from a defendant in a criminal
proceeding based on the law in effect on the date the offense
was committed, the amount of a court cost imposed on the
defendant in a criminal proceeding must be the amount
established under law in effect on the date the defendant is
convicted of the offense.

TEX. GOV’T CODE ANN. § 51.608 (effective June 14, 2013). Section 51.608
unambiguously states that the amount of court costs must be based on the
law “in effect” on the date of conviction. See id.; Clark v. State, 994 S.W.2d 166,
168 (Tex. Crim. App. 1999) (noting that when the language of a statute is
unambiguous, we give effect to the plain meaning of the words unless
doing so would lead to absurd results); see also Contreras [v. State], [Nos. 05-
20-00185-CR, 05-20-00186-CR,] 2021 WL 6071640, at *6 [(Tex. App.—Dallas
Dec. 23, 2021, no pet.) (mem. op., not designated for publication)].

Bradshaw, 675 S.W.3d at 84.

Willingham v. State Page 5
Willingham was convicted on June 29, 2021. While section 5.01 of the Cost Act

requires application of the law regarding court costs in effect on the date the offense was

committed, section 51.608 of the Government Code requires application of the amount of

such costs established under the law in effect at the time of conviction, which, in this case,

is the $15 fee established by article 102.030(a) of the Code of Criminal Procedure. See TEX.

CODE CRIM. PROC. ANN. § 51.608; Bradshaw, 675 S.W.3d at 84–85; see also Act of May 23,

2019, 86th Leg., R.S., ch. 1352, § 5.04, 2019 Tex. Gen. Laws 3982, 4035–36.

However, the assessment of the time payment fee is premature, and we delete the

time payment fee, without prejudice to the fee being assessed later if, more than thirty

days after the issuance of the appellate mandate, Willingham fails to completely pay any

fine, court costs, or restitution owed. See Dulin v. State, 620 S.W.3d 129, 133 (Tex. Crim.

App. 2021).

We overrule issue three’s complaint that the trial court erred in assessing the

restitution fee for release and we sustain issue three’s complaints regarding the $8.00 fee

for issuance of a precept and the $15.00 time payment fee.

Having overruled Willingham’s issues one and two and having sustained in part

and overruled in part issue three, we modify the trial court’s judgment and bill of costs

by deleting the $15 time payment fee and reducing court costs by $8.00. The trial court’s

judgment is affirmed as modified.

Willingham v. State Page 6
MATT JOHNSON
Justice

Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
(Chief Justice Gray dissenting)
Affirmed as modified
Opinion delivered and filed February 29, 2024
Publish
[CR25]

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