George Ovalle v. the State of Texas
05-19-00136-CR
| Tex. App. | Aug 3, 2021Background
- Appellant George Ovalle was indicted for aggravated assault with a deadly weapon; he signed a judicial confession, waived a jury, and entered a guilty plea.
- At the plea hearing the court confirmed Ovalle’s plea was open (no plea bargain), accepted the plea, made a deadly-weapon finding, and sentenced him to eight years’ imprisonment.
- The trial court’s written judgment nonetheless recited a plea‑bargain term “8 YEARS TDCJ” in the plea‑bargain field.
- The certified bill of costs and court fee docket included a $25 time‑payment fee assessed 28 days after the January 25, 2019 judgment, producing total court costs of $299.
- On appeal this court originally found part of the $25 fee unconstitutional; the Texas Court of Criminal Appeals vacated and remanded in light of Dulin v. State, which held that appeals suspend the 30‑day clock for assessing the time‑payment fee.
- On remand the court modified the judgment to show an open plea and struck the $25 time‑payment fee as prematurely assessed, reducing court costs by $25 and affirming the judgment as modified.
Issues
| Issue | Ovalle's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the judgment should be corrected to show Ovalle entered an open plea (no plea bargain) | The written judgment incorrectly indicates a plea bargain; record shows open plea | Judgment reflects plea‑form language; no substantive plea bargain existed | Judgment modified: replace “8 YEARS TDCJ” in plea‑bargain field with “OPEN PLEA” |
| Whether the $25 time‑payment fee in court costs is validly assessed | The $25 fee is unconstitutional / improperly assessed | The fee was assessed as part of court costs | $25 time‑payment fee struck as prematurely assessed under Dulin; court costs reduced by $25 (may be assessed later if proper) |
Key Cases Cited
- Dulin v. State, 620 S.W.3d 129 (Tex. Crim. App. 2021) (pendency of appeals suspends 30‑day clock; time‑payment fees assessed prematurely)
- Bigley v. State, 865 S.W.2d 26 (Tex. Crim. App. 1993) (appellate courts may reform judgments to reflect the truth)
- Asberry v. State, 813 S.W.2d 526 (Tex. App.—Dallas 1991) (same principle permitting correction of judgments)
- Ovalle v. State, 592 S.W.3d 615 (Tex. App.—Dallas 2020) (this court’s earlier opinion addressing constitutionality of portion of the time‑payment fee)