Peraza, Osmin

PD-0100-15 & PD-0101-15 PD-0100&0101-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 1/28/2015 2:56:02 PM Accepted 1/29/2015 2:40:15 PM No. ______________ ABEL ACOSTA CLERK In the Texas Court of Criminal Appeals At Austin  No. 01-12-00690-CR No. 01-12-00691-CR In the Court of Appeals for the First District of Texas at Houston  OSMIN PERAZA Appellant V. THE STATE OF TEXAS Appellee  STATE’S PETITION FOR DISCRETIONARY REVIEW  DEVON ANDERSON District Attorney Harris County, Texas JESSICA AKINS Assistant District Attorney January 29, 2015 1201 Franklin, Suite 600 Houston, Texas 77002 Telephone: 713.755.5826 Fax: 713.755.5809 akins_jessica@dao.hctx.net Counsel for Appellee ORAL ARGUMENT REQUESTED IDENTIFICATION OF THE PARTIES Pursuant to TEX. R. APP. P. 68.4(a), a complete list of the names of all interested parties is provided below. Victim: A.S.  a child victim under the age of 14 Counsel for the State: Devon Anderson, District Attorney of Harris County Jessica Akins, Assistant District Attorney on appeal Sarah Bruchmiller, Assistant District Attorney at trial 1201 Franklin, Suite 600, Houston, Texas 77002 Lisa McMinn, State Prosecuting Attorney P. O. Box 13046, Austin, Texas 78711 Appellant or criminal defendant: Osmin Peraza Counsel for Appellant: Emily DeToto  Counsel at trial Jani Maselli  Counsel on appeal Assistant Public Defender, Harris County, Texas 1201 Franklin, 13th Floor, Houston, Texas 77002 Trial Judge: Honorable Jan Krocker  Presiding Judge i TABLE OF CONTENTS IDENTIFICATION OF THE PARTIES ................................................................................ i INDEX OF AUTHORITIES ................................................................................................... iii STATEMENT REGARDING ORAL ARGUMENT .......................................................... 1 STATEMENT OF THE CASE ................................................................................................. 1 STATEMENT OF THE PROCEDURAL HISTORY ......................................................... 1 REASONS FOR REVIEW ....................................................................................................... 2 STATEMENT OF FACTS ....................................................................................................... 2 SOLE GROUND FOR REVIEW ........................................................................................... 3 The First Court of Appeals erred by finding the DNA record fee is an unconstitutional tax that violates the separation of powers clause CONCLUSION .......................................................................................................................... 8 CERTIFICATE OF SERVICE ................................................................................................ 9 CERTIFICATE OF COMPLIANCE ..................................................................................... 9 ii INDEX OF AUTHORITIES CASES Broyles v. State, 688 S.W.2d 290 (1985) ......................................................................................................... 6 Ex Parte Carson, 159 S.W.2d 126 (Tex. Crim. App. 1942) ........................................................................... 4 Peraza v. State, No. 01-1200069-CR, No. 01-12-00691-CR, 2014 WL 7476214 (Tex. App.—Houston [1st Dist.] Dec. 30, 2014, pet. filed) ... 2-7 Salinas v. State, 426 S.W.3d 318 (Tex. App.— Houston [14th Dist.] 2014, pet. granted) ................................................................. 1, 7, 8 State v. Claborn, 870 P.2d 169 (Okl. Cr. 1994)................................................................................................ 5 State v. Johnson, 478 S.E.2d 16 (N.C. App. 1996) ........................................................................................... 6 State v. Young, 238 So.2d 589 (Fla. 1970) ..................................................................................................... 6 STATUTES TEX. CODE CRIM PROC. ANN. art. 102.020 (West 2012)...................................................................................................... 7 TEX. CODE CRIM PROC. ANN. art. 102.020(a)(1) (West 2012) .......................................................................................4, 5 TEX. GOV’T CODE ANN. § 411.1471 (a)(1)(D) (West 2012)........................................................................................ 4 TEX. GOV’T CODE ANN. § 411.1471 (b) (West 2012) ................................................................................................... 5 iii TEX. PENAL CODE ANN. § 22.021 (West 2012)............................................................................................................. 4 RULES TEX. R. APP. P. 66.3(a)................................................................................................................ 2 TEX. R. APP. P. 66.3(e)................................................................................................................ 2 TEX. R. APP. P. 68.2(a) ............................................................................................................... 2 TEX. R. APP. P. 68.4(a) ................................................................................................................ i TEX. R. APP. P. 68.4(d) ................................................................................................................ 1 iv TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS: STATEMENT REGARDING ORAL ARGUMENT Pursuant to TEX. R. APP. P. 68.4(d), the State requests oral argument. Argument in this case is necessary because the court of appeals’ opinion is in conflict with a recent case from the Fourteenth Court of Appeals, Salinas v. State, 426 S.W.3d 318 (Tex. App.—Houston [14th Dist.] 2014, pet. granted) (statute requiring assessment of court costs was not facially unconstitutional under the separation of powers clause of the Texas Constitution). STATEMENT OF THE CASE Appellant was charged with two counts of aggravated sexual assault of a child. (CR I 2; CR II 2)1. Appellant pled guilty to both offenses and the trial court sentenced him to 25 years confinement on each case, to run concurrently. (CR I 59-60, 73; CR II 61-62, 75). STATEMENT OF THE PROCEDURAL HISTORY On December 30, 2014, a panel of the First Court of Appeals issued a published opinion affirming these convictions, but modifying the judgments to delete the $250 DNA record fee, finding it constitutes an unconstitutional tax. See 1 “CR I” refers to the clerk’s record in cause number 1305438, and “CR II” refers to the clerk’s record in cause number 1305439. Peraza v. State, No. 01-1200069-CR, No. 01-12-00691-CR, 2014 WL 7476214 (Tex. App.—Houston [1st Dist.] Dec. 30, 2014, pet. filed). The opinion was authored by Justice Jennings, and joined by Justice Sharp. Id. Justice Brown filed a dissenting opinion. Id. The State’s petition for discretionary review is timely filed. See TEX. R. APP. P. 68.2(a). REASONS FOR REVIEW This petition for discretionary review should be granted because the court of appeals has issued an opinion in conflict with a decision from another court of appeals. See TEX. R. APP. P. 66.3(a). Further, the justices on the panel of the First Court of Appeals have disagreed on a material question of law necessary to the court’s decision. See TEX. R. APP. P. 66.3(e). STATEMENT OF FACTS Appellant was indicted for two offenses – aggravated sexual assault of a child, for intentionally and knowingly causing the mouth of a child under the age of 14, namely A.S., to contact his sexual organ, and aggravated sexual assault of a child, for intentionally and knowingly causing the sexual organ of a child under the age of 14, namely A.S., to contact appellant’s sexual organ. (CR I 2; CR II 2). An investigation was opened by CPS after A.S., the complainant, confided to a friend at school that she was being sexually abused by appellant, her uncle. 2 (State’s Exhibit Number 1; RR II 15; RR III 6). Appellant is married to the complainant’s aunt, her father’s sister. (RR II 13-14). Appellant and his wife lived in complainant’s home, for a period of 5 months, when theses offenses occurred. (RR II 14-15). Complainant reported several sexual advances by appellant; she described one incident where appellant physically put his penis inside her vagina, and another time where he forced her mouth on his penis. (State’s Exhibit Number 1; RR II 16-17; RR III 6-7). Appellant initially denied committing theses offenses, but later admitted his guilt. (State’s Exhibit Number 1). He recalled committing the offenses at night when his wife was sleeping and the complainant’s parents were not around. (State’s Exhibit Number 1; RR III 6-7). Complainant had trouble in school after the assaults; her grades dropped, she suffered from nightmares and attended weekly counseling sessions. (RR II 17- 19). Her father testified that appellant’s actions tore apart the family, so he moved his family to Nashville, Tennessee. (RR II 19). SOLE GROUND FOR REVIEW The First Court of Appeals erred by finding the DNA record fee is an unconstitutional tax that violates the separation of powers clause. Both the Texas Code of Criminal Procedure and the Texas Local Government Code contain provisions authorizing court costs in criminal cases. 3 Article 102.020(a)(1) of the Texas Code of Criminal Procedure authorizes court costs in the amount of $250 when a person is convicted of an offense listed in Section 411.1471(a)(1) of the Government Code. See TEX. CODE CRIM PROC. ANN. art. 102.020(a)(1) (West 2012). Section 411.1471(a)(1) includes the offense of aggravated sexual assault of a child. See TEX. GOV’T CODE ANN. § 411.1471(a)(1)(D) (West 2012); TEX. PENAL CODE ANN. § 22.021 (West 2012) (aggravated sexual assault of a child). Appellant’s court costs included the $250 fee and in his appeal to the First Court, he challenged the assessment of this DNA record fee, claiming it was an unconstitutional tax that violated the separation of powers clause of the Texas Constitution. (CR I 75-77; CR II 77-79). The majority panel of the First of Court of Appeals agreed and modified both judgments to delete the $250 DNA record fee. Peraza, 2014 WL 7476214 at * 12-13. In support of their holding, the First Court of Appeals utilized Ex Parte Carson, 159 S.W.2d 126 (Tex. Crim. App. 1942), for the proposition that court costs in criminal proceedings must be necessary or incidental to the criminal case to be considered a proper item of cost. In Carson, the defendant challenged the constitutionality of a statute assessing a sum of money for the purpose of establishing and maintaining a county law library, which the Court found was not a proper cost of prosecution. Id. 4 The First Court of Appeals concluded that the fee is an unconstitutional tax because the revenue could possibly benefit other activities unrelated to the statewide DNA database. Peraza, 2014 WL 7476214 at * 10-11. As pointed out in the dissent, by doing so, the Court relied on web sites outside the record, (appellant did not provide any record evidence to show how the funds are expended) which essentially relieves appellant of his burden when bringing a facial constitutional challenge. Peraza, 2014 WL 7476214 at * 15-16 (Brown, J., dissenting). The DNA record court cost is a one-time fee of $250; this statute allows law enforcement to obtain a specimen from the defendant to create a DNA record. TEX. CODE CRIM PROC. ANN. art. 102.020(a)(1) (West 2012); TEX. GOV’T CODE ANN. § 411.1471 (b) (West 2012). “As long as the statutory criminal assessments are reasonably related to the costs of administering the criminal justice system, its imposition will not render the courts ‘tax gatherers’ in violation of the separation of powers doctrine.” State v. Claborn, 870 P.2d 169, 171 (Okl. Cr. 1994) (finding that various assessments, including a fingerprinting fee, a victims compensation assessment, and a drug assessment imposed on a criminal defendant convicted of drug charges did not violate the separation of powers doctrine because they are “reasonably related to the costs of administering the criminal justice system and are not simply an executive branch tax”). The Court in Claborn noted that the 5 separation of powers doctrine does not demand crystal clear distinctions between branches of government, acknowledging that a certain amount of “blending” is inevitable. Id. at 171. And several other jurisdictions have reached this same conclusion. See Broyles v. State, 688 S.W.2d 290, 292 (1985) (holding that court costs of $302.25 for DWI defendant, which included an additional $250 that was allocated in part to programs relating to drunken driving, detoxification services and alcohol and drug abuse rehabilitation, was constitutional since funds go to agencies society has created to keep the highways safe from drunk drivers); State v. Young, 238 So.2d 589, 590 (Fla. 1970) (acknowledging difference in a civil filing fee and a post- conviction criminal fee, and holding that statute imposing a one dollar charge for law enforcement on every person convicted of a crime is not a violation of the separation of powers doctrine because it is reasonable that one who is convicted of a crime “should be made to share in the improvement of agencies that society has had to employ in defense against the very acts for which he has been convicted”) (emphasis added); State v. Johnson, 478 S.E.2d 16, 24 (N.C. App. 1996) (finding that a $100 fee imposed on a criminal convicted of a drug charge to recompense the state for costs of drug analysis was not a violation of the separation of powers doctrine because the charge is reasonably related to the costs of administering the criminal justice system). 6 The cost collected under Article 102.020 was to reimburse the State for expenses incurred as a result of the felony prosecution, specifically costs spent to obtain DNA specimens in certain cases. TEX. CODE CRIM PROC. ANN. art. 102.020 (West 2012). Since this statutory assessment is reasonably related to the costs of administering the criminal justice system, the Court failed to demonstrate how the statute authorizing this court cost is unconstitutional. See Peraza, 2014 WL 7476214 at * 16 (Brown, J., dissenting) (Having determined that both portions of the DNA Record Fee—the 65% that benefits the criminal-justice planning account and the 35% that benefits the state highway fund—are sufficiently related to the prosecution of a criminal case, I would conclude that appellant failed to satisfy his burden of demonstrating that the DNA Record Fee is facially unconstitutional). The First Court acknowledges the Fourteenth Court of Appeals holding in Salinas v. State, where the Court examined the consolidated court cost on this same basis and found it was constitutional, but disagrees with its conclusion. See Peraza, 2014 WL 7476214 at * 12; Salinas, 426 S.W.3d at 325-328. (statute requiring defendants convicted of a felony to pay $133 as a court cost, with those funds allocated to 14 specified funds, was not facially unconstitutional under the separation of powers clause of the Texas Constitution, on the theory that it required courts to perform executive function by collecting a tax; there was no evidence what the designated funds actually did with the money, and even if some 7 of the fund recipients were invalid because they were not related to the justice system, court costs could be collected and distributed in accordance with severability principles to the admittedly appropriate funds specified in the statute). Review of the Court of Appeal’s opinion in this case is necessary, as Osmin Peraza v. State is a published opinion that is in conflict with a decision from the Fourteenth Court of Appeals, Salinas, 426 S.W.3d at 325-328.2 CONCLUSION It is respectfully requested that this petition be granted, the Court of Appeals’ judgment on this issue be reversed, and the conviction be affirmed. DEVON ANDERSON District Attorney Harris County, Texas /s/ Jessica Akins JESSICA AKINS Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 akins_jessica@dao.hctx.net 713.755.5826 TBC No. 24029415 2 This Court has ordered and received briefing on the separation of powers issue as it relates to court costs in Orlando Salinas v. State, PD-0419-14. It has not yet been submitted. 8 CERTIFICATE OF SERVICE This is to certify that a copy of this document has been sent to the following: Jani Maselli Assistant Public Defender Harris County, Texas 1201 Franklin, 13th Floor Houston, Texas 77002 Jani.Maselli@pdo.hctx.net Lisa C. McMinn State Prosecuting Attorney P. O. Box 13046 Austin, Texas 78711 Lisa.McMinn@SPA.texas.gov /s/ Jessica Akins JESSICA AKINS Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 akins_jessica@dao.hctx.net 713.755.5826 TBC No. 24029415 CERTIFICATE OF COMPLIANCE This is to certify that this computer-generated document has a word count of 2290 words, based upon the representation provided by the word processing program that was used to create the document. /s/ Jessica Akins Date: 1/28/2015 9 APPENDIX A 10 less than fourteen years of age. After his arrest, appellant 2014 WL 7476214 Only the Westlaw citation is currently available. failed a polygraph test and then admitted to a police officer that he had committed the offenses. He NOTICE: THIS OPINION HAS NOT BEEN subsequently pleaded guilty to committing the offenses. RELEASED FOR PUBLICATION IN THE In his plea papers, appellant admitted that he had PERMANENT LAW REPORTS. UNTIL RELEASED, intentionally and knowingly caused both the mouth of the IT IS SUBJECT TO REVISION OR WITHDRAWAL. complainant, a person younger than fourteen years of age, OPINION to contact his sexual organ and the sexual organ of the Court of Appeals of Texas, complainant to contact his sexual organ. In each case, Houston (1st Dist. appellant also signed written admonishments, representing that he was mentally competent, understood Osmin Peraza, Appellant the nature of the charge against him and the consequence v. of his plea, and freely and voluntarily pleaded guilty to The State of Texas, Appellee the offense. Appellant’s attorney signed the plea papers, NO. 01–12–00690–CR, NO. 01–12–00691–CR | affirming that she believed that appellant had executed his Opinion issued December 30, 2014 pleas knowingly, voluntarily, and after a full discussion of the consequences of his pleas. The trial court found On Appeal from the 184th District Court, Harris County, sufficient evidence of appellant’s guilt in both cases and Texas, Trial Court Case Nos. 1305438 and 1305439 that appellant had entered his guilty pleas freely, knowingly, and voluntarily. And it admonished appellant Attorneys and Law Firms of his legal rights, accepted his guilty pleas, and ordered a Jani Maselli, Assistant Public Defender, Houston, TX, for presentence investigation in each case. appellant. At the sentencing hearing, appellant moved to withdraw Devon Anderson, District Attorney, Jessica Akins, his guilty pleas, arguing that they had been coerced. After Assistant District Attorney, Houston, TX, for State. finding that appellant had pleaded guilty freely and voluntarily, the trial court denied his motion. Panel consists of Justices Jennings, Sharp, and Brown. In its judgment of conviction in each case, the trial court ordered appellant to pay $634 in court costs, including, as part of the “Sheriff’s Fee,” a $50 charge for “serving capias”2 and a $5 charge for an arrest without a warrant or OPINION capias.3 The trial court also included within the $634 of court costs a $250 “DNA Record Fee.”4 Appellant then Terry Jennings, Justice filed his motions for new trial and in arrest of judgment, *1 Appellant, Osmin Peraza, without an agreed which the trial court denied without a hearing. punishment recommendation from the State, pleaded guilty to two separate offenses of aggravated sexual assault of a child less than fourteen years of age.1 The trial court assessed his punishment at confinement for twenty- five years for each offense, with the sentences to run Withdrawal of Guilty Pleas concurrently. In four issues, appellant contends that each *2 In his first issue, appellant argues that the trial court judgment contains an erroneous and unsupported erred in denying his motion to withdraw his guilty pleas “Sheriff’s Fee” and an unconstitutional “DNA Record because he did not enter the pleas voluntarily. Fee,” the trial court erred in not permitting him to withdraw his guilty pleas, and it erred in denying him a A defendant may withdraw his guilty plea at any time hearing on his motions for new trial and in arrest of before judgment is pronounced or the trial court takes the judgment. plea under advisement. Jackson v. State, 590 S.W.2d 514, 515 (Tex.Crim.App.1979); State v. Ellis, 976 S.W.2d 789, We modify the trial court’s judgments and affirm as 792 (Tex.App.–Houston [1st Dist.] 1998, no pet.). Once a modified. plea has been taken under advisement or guilt has been adjudicated, however, a request to withdraw the plea is untimely, and the withdrawal of the plea is within the sound discretion of the trial court. Jackson, 590 S.W.2d at 515; Ellis, 976 S.W.2d at 792. After the trial court has Background admonished the defendant and received the plea and A Harris County Grand Jury issued a true bill of evidence, the passage of the case for a presentence indictment, accusing appellant of committing two investigation constitutes taking the case under separate offenses of aggravated sexual assault of a child advisement. See Jackson, 590 S.W.2d at 514–15; 11 Wissinger v. State, 702 S.W.2d 261, 262–63 (Tex.App.– Houston [1st Dist.] 1985, pet. ref d). Because appellant *3 In regard to appellant’s assertion that his guilty pleas did not request that his guilty pleas be withdrawn until were coerced, we note that “a plea is involuntary when it after the trial court had taken his cases under advisement, is ‘induced by threats, misrepresentations, or improper we review the trial court’s denial of his motion to promises’ ” by the prosecutor, judge, or law enforcement withdraw his pleas for an abuse of discretion. officials. Rios v. State, 377 S.W.3d 131, 136 (Tex.App.– Houston [1st Dist.] 2012, pet. ref’d) (quoting Kniatt v. A trial court abuses its discretion when it acts arbitrarily, State, 206 S.W.3d 657, 664 (Tex.Crim.App.2006)). unreasonably, or without reference to any guiding rules or Moreover, we presume the regularity of the judgments principles. Lyles v. State, 850 S.W.2d 497, 502 and proceedings, and appellant has the burden of (Tex.Crim.App.1993); Montgomery v. State, 810 S.W.2d overcoming this presumption. Dusenberry, 915 S.W.2d at 372, 380 (Tex.Crim.App.1990). To show that the trial 949. court abused its discretion when it refused to allow appellant to withdraw his guilty pleas, he must show that Appellant presented no evidence that his guilty pleas were “the trial court’s rulings lie outside the zone of reasonable actually coerced. At his sentencing hearing, appellant’s disagreement.” Jagaroo v. State, 180 S.W.3d 793, 802 trial counsel suggested that appellant was coerced into (Tex.App.–Houston [14th Dist.] 2005, pet. ref’d). pleading guilty because the jury was “on the way” and appellant had failed a polygraph test immediately before Appellant first argues that there is no evidence that he admitting to a police officer that he had committed the voluntarily entered his pleas because there is no record of sexual-assault offenses. The record, however, contains no the trial court’s oral discussion with him of his legal evidence that anyone coerced appellant into pleading rights. We consider the entire record in determining guilty. Appellant voluntarily submitted to a polygraph whether a plea was entered voluntarily. Fimberg v. State, test, and neither his failure of the polygraph test, nor the 922 S.W.2d 205, 207 (Tex.App.–Houston [1st Dist.] immediacy of a jury trial, constituted a threat, 1996, pet. ref’d). A prima facie presumption that a misrepresentation, or improper promise. Thus, appellant defendant voluntarily and knowingly pleaded guilty arises has not overcome the presumption that he knowingly and when the trial court finds that the defendant was properly voluntarily entered his pleas. admonished. See Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App.1998); see also TEX.CODE CRIM. When appellant requested to withdraw his guilty pleas, PROC. ANN. art. 26.13(b) (Vernon Supp.2014) (guilty the trial court had taken his cases under advisement and pleas may not be accepted unless mentally competent reset them for a punishment hearing. Because the trial defendant enters plea freely and voluntarily). When the court had already admonished appellant of his legal rights record presents a prima facie showing that the plea was and he had already voluntarily pleaded guilty, his request entered voluntarily and knowingly, “the burden shifts to to withdraw his pleas was untimely, and the trial court the defendant to show that he entered the plea without had discretion to accept or deny his motion. See Jackson, understanding the consequences.” Arreola v. State, 207 590 S.W.2d at 515. S.W.3d 387, 391 (Tex.App.–Houston [1st Dist.] 2006, no pet.). Accordingly, we hold that the trial court did not err in denying appellant’s motion to withdraw his guilty pleas. Here, the absence of a recorded plea colloquy, alone, does not overcome the presumption that appellant was properly We overrule appellant’s first issue. admonished and understood the consequences and nature of his pleas. See Dusenberry v. State, 915 S.W.2d 947, 949–52 (Tex.App.–Houston [1st Dist.] 1996, pet. ref’d) (concluding guilty plea voluntary because defendant received written admonishments of legal rights). Court Costs for Arrest Although the plea colloquy was not recorded, appellant In his second issue, appellant argues that the trial court’s received written admonishments of his legal rights, judgments are invalid because they each contain an affirmed that he was mentally competent and understood erroneous and unsupported “Sheriff’s Fee.” Appellant the nature of the charges against him and the asserts that, “[a]t the very least, the $50.00 Sheriff’s Fee consequences of his pleas, and agreed that he freely and [for serving a capias] should be removed” from the $634 voluntarily pleaded guilty in each case. Further, the plea in court costs assessed against him in each judgment. papers show that appellant’s trial counsel and the trial court both verified that appellant entered his guilty pleas A criminal defendant must pay certain statutorily freely, knowingly, and voluntarily, after having fully mandated costs and fees, which vary depending on the discussed his pleas and their consequences with counsel. type of offense, the underlying facts, and the procedural On this record, there is no evidence that appellant was not history of the case. See TEX. GOV’T CODE ANN. § properly admonished or failed to understand the 102.021 (Vernon Supp.2014) (listing court costs upon consequence or nature of his pleas. conviction); TEX. LOC. GOV’T CODE ANN.. § 133.102 12 (Vernon Supp.2014) (same). The district court clerk must Constitutionality of “DNA Record Fee” keep a record of each fee or cost charged for a service In his third issue, appellant argues that the trial court’s rendered in a criminal action or proceeding. TEX. CODE judgments are invalid because they each assess an CRIM. PROC. ANN. art. 103.009(a)(1) (Vernon 2006). If unconstitutional $250 “DNA Record Fee.” See TEX. a criminal action is appealed, an officer of the court must CODE CRIM. PROC. ANN. art. 102.020(a)(1) (Vernon certify and sign a bill of costs and send it to the appellate Supp.2014) (authorizing collection of $250 from persons court. TEX. CODE CRIM. PROC. ANN. art. 103.006 convicted of offenses listed in Texas Government Code (Vernon 2006). section 411.1471(a)(1)). Appellant asserts that the fee required by article 102.020 is facially unconstitutional Court costs do not constitute part of the guilt or sentence under the separation of powers clause of the Texas of a criminal defendant—“they are ‘a nonpunitive Constitution. See TEX. CONST. art. II, § 1. recoupment of the costs of judicial resources expended in connection with the trial of a case.’ ” Johnson v. State, Whether a statute is facially constitutional is a question of 423 S.W.3d 385, 390 (Tex.Crim.App.2014) (quoting law that we review de novo. Ex Parte Lo, 424 S.W.3d 10, Armstrong v. State, 340 S.W.3d 759, 767 14 (Tex.Crim.App.2013); Ma loney v. State, 294 S.W.3d (Tex.Crim.App.2011)). Therefore, we review the 613, 626 (Tex.App.–Houston [1st Dist.] 2009, pet. ref’d). assessment of court costs to determine whether there is a When reviewing a constitutional challenge, we “presume basis for the cost; we do not undertake an evidentiary- that the statute is valid and that the legislature was neither sufficiency review. Id. unreasonable nor arbitrary in enacting it.” Curry v. State, 186 S.W.3d 39, 42 (Tex.App.–Houston [1st Dist.] 2005, *4 Here, the trial court clerk’s bills of costs each include a no pet.); see also State v. Rosseau, 396 S.W.3d 550, 557 $50 charge for “serving capias” as part of the “Sheriff’s (Tex.Crim.App.2013). If the statute can be construed in Fee” assessed against appellant. See TEX. CODE CRIM. two different ways, one of which sustains its validity, we PROC. ANN. art. 102.011(a)(2) (Vernon Supp.2014) (“A apply the interpretation that sustains its validity. Maloney, defendant convicted of a felony or a misdemeanor shall 294 S.W.3d at 625. pay ... $50 for executing or processing an issued arrest warrant, capias, or capias pro fine....”). They also include The party challenging the statute bears the burden of a $5 charge for an arrest without a warrant/capias. See id. establishing the statute’s unconstitutionality. Rosseau, art. 102.011(a)(1) (authorizing $5 charge for arrest 396 S.W.3d at 557; Curry, 186 S.W.3d at 42. “A facial without warrant). The State agrees that the records do not challenge to a statute is the most difficult challenge to support the $50 charge for “serving capias.” And the mount successfully because the challenger must establish records contain no basis to conclude that capiases were that no set of circumstances exists under which the statute issued for appellant’s arrest. will be valid.” Santikos v. State, 836 S.W.2d 631, 633 (Tex.Crim.App.1992); see also Rosseau, 396 S.W.3d at The proper remedy for such an unsupported fee is for the 557. We “must uphold the challenged statute if it can be appellate court to modify the judgment, not to grant a new reasonably construed in a manner consistent with the trial as appellant has requested. See TEX. R. APP. P. legislative intent and is not repugnant to the 43.2(b); French v. State, 830 S.W.2d 607, 609 Constitution.” Curry, 186 S.W.3d at 42. (Tex.Crim.App.1992) (agreeing “appellate court has authority to reform a [trial court] judgment to ... make the *5 Article 102.020(a)(1), titled “Costs Related to DNA record speak the truth when the matter has been called to Testing,” provides that a defendant convicted of certain its attention by any source”); see also Nolan v. State, 39 offenses, including aggravated sexual assault of a child S.W.3d 697, 698 (Tex.App.–Houston [1st Dist.] 2001, no less than fourteen years of age, “shall pay as a cost of pet.) (“An appellate court has the power to correct and court: $250 [upon] conviction....” TEX. CODE CRIM. reform a trial court judgment ‘to make the record speak PROC. ANN. art. 102.020(a)(1). Thirty-five percent of the truth when it has the necessary data and information to the revenue received from this “DNA Record Fee” is do so ....’ ” (quoting Asberry v. State, 813 S.W.2d 526, dedicated to the state highway fund, while sixty-five 529 (Tex.App.–Dallas 1991, pet. ref’d))). percent of the revenue is dedicated to the general revenue fund of the criminal justice planning account. Id. art. Because there is no basis in the record to support the $50 102.020(h). charge for “serving capias” assessed against appellant as part of the “Sheriff’s Fee” in both of appellant’s cases, we Appellant argues that the “DNA Record Fee” is an modify each judgment to delete the $50 charge from the impressible tax collected by the judiciary, rather than a court costs. legitimate court cost, because revenue from this fee is dedicated to the state highway fund and criminal justice We sustain appellant’s second issue. planning account and, thus, used for services that are neither necessary nor incidental to the trial of a criminal case. In support of his argument, appellant principally relies on Ex Parte Carson, 143 Tex.Crim. 498, 159 13 S.W.2d 126 (1942). 222.002 (Vernon 2011) (emphasis added). “[T]he department” referenced in section 222.002 is the Texas In Carson, the Texas Court of Criminal Appeals Department of Transportation (“TxDOT”). Id. § considered whether it was constitutionally permissible to 201.001(a)(2) (Vernon Supp.2014); see also State v. impose a $1 fee as a court cost in all cases filed in Montgomery Cnty., 338 S.W.3d 49, 56 (Tex.App.– counties with more than eight district courts or more than Beaumont 2011, pet. denied) (noting “ ‘[d]epartment’ three county courts at law. 159 S.W.2d at 127. The means the Department of Transportation”). revenue collected from the $1 fee was directed to the “County Law Library Fund” and “available to be used for *6 Here, the “DNA Record Fee” revenue dedicated to the certain costs and expenses in acquiring, maintaining and state highway fund does not constitute money that is operating a law library available to the judges of the required, by either the Texas Constitution or federal law, courts and to the attorneys of litigants.” Id. The court held to be used for public roadways. See TEX. CODE CRIM. that the fee constituted an unconstitutional tax, not a PROC. ANN. art. 102.020(a)(1); TEX. TRANSP. CODE legitimate court cost, because it was “neither necessary ANN. § 222.001(a). Therefore, pursuant to section nor incidental to the trial of a criminal case.” Id. at 127, 222.002, such money may be used for any function of 130. The court cautioned that to hold otherwise, TxDOT. See TEX. TRANSP. CODE ANN. §§ 201,001, 222.002. would lead into fields of expenditures which may as well The stated mission of TxDOT is to “[w]ork with others to include the cost of the court houses, provide safe and reliable transportation solutions for the automobiles which officers use Texas.”5 Inside TxDOT: Mission, Goals and Values, TEX. to apprehend criminals and even DEP’T TRANSP., http://www.txdot.gov/inside- the roads upon which they ride. If txdot/contact-us/mission.html (last visited Dec. 16, 2014); something so remote as a law see also Glenn T. Hasler, Dangerous Distractions: The library may be properly charged to Problematic Use of Wireless Communication Devices the litigant on the theory that it While Driving, 12 TEX. TECH. ADMIN. L.J. 155, 168 better prepares the courts and the (2010) (“TxDOT’s purpose is to facilitate effective attorneys for the performance of movement throughout the state by providing safe, their duties, it occurs to us that we efficient transportation systems.”); Kyle R. Baum, might as logically tax an item of Comment, Rollin’ on Down the Rail: Can Texas Lead the cost for the education of such Nation in Developing Efficient High–Speed Rail this Time attorneys and judges and even the Around?, 45 TEX. TECH. L.REV. ONLINE 1, 2 (2013) endowments of the schools which (TxDOT’s “core mission is to ‘provide safe and efficient they attend. movement of people and goods, enhance economic viability and improve the quality of life for people that Id. at 127. travel in the state of Texas by maintaining existing roadways and collaborating with private and local entities Appellant, likening the “DNA Record Fee” to the law to plan, design, build and maintain expanded library fee in Carson, first asserts that the portion of the transportation infrastructure’ ”). “DNA Record Fee” dedicated to the state highway fund “is used ... [to] provide services that are neither necessary TxDOT is divided into twenty-two divisions, ranging nor incidental to the trial of a criminal case.” from aviation to maritime to public transportation and rail, which are tasked with handling the responsibilities of By law, “[m]oney that is required to be used for public the department. See TEX. TRANSP. CODE ANN. § roadways by the Texas Constitution or federal law and 201.202(a) (Vernon Supp.2014) (“The commission shall that is deposited in the state treasury to the credit of the organize the department into divisions to accomplish the state highway fund, ... may be used only: (1) to improve department’s functions ... including divisions for: (1) the state highway system; (2) to mitigate adverse aviation; (2) highways and roads; and (3) public environmental effects that result directly from transportation.”); Inside TxDOT: Divisions, TEX. DEP’T construction or maintenance of a state highway by the TRANSP., http:// www.txdot.gov/inside- department; or (3) by the Department of Public Safety to txdot/division.html (last visited Dec. 16, 2014) (“From police the state highway system and to administer state rail crossings to right of way, traffic cameras to travel laws relating to traffic and safety on public roads.” TEX. maps, and bridge inspections to bid opportunities, TRANSP. CODE ANN. § 222.001(a) (Vernon 2011) TxDOT’s divisions handle a diverse range of services for (emphasis added). Section 222.002 supplements this the agency.”). instruction and provides that “[m]oney in the state highway fund that is not required to be spent for public TxDOT is responsible for developing a statewide roadways by the Texas Constitution or federal law may be transportation plan for addressing all modes of used for any function performed by the department.” Id. § transportation, including highways and turnpikes, 14 aviation, mass transportation, railroads, high-speed Supp.2014) (crime laboratory accreditation process). railroads, and water traffic. See TEX. TRANSP. CODE Because “[s]ubchapter G governs the collection and ANN. § 201.601(a) (Vernon Supp.2014); Robbins v. management of DNA samples, including [a]ppellant’s, by Limestone Cnty., 114 Tex. 345, 268 S.W. 915, 920 (1925) [the Texas Department of Public Safety (“DPS”) ]” and (agency created to “formulate and execute plans and “[s]ection 411.0205 regulates the accreditation of forensic policies for the location, construction and maintenance of crime laboratories by DPS,” our dissenting colleague a comprehensive system of state highways and public concludes that “the portion of the DNA Record Fee roads”); see also TEX. TRANSP. CODE ANN. §§ credited to the state highway fund is used to defray the 201.6011–622 (Vernon 2011 & Supp.2014) (listing plans costs associated with collecting, storing, and testing DNA and projects of TxDOT); Brian K. Carroll, The Road samples” and, thus, “paying for DNA sampling and Goes on Forever and the Claims Process Never Ends: An crime-lab accreditation is a valid, constitutional use of the Approach for Success in Handling Texas Department of DNA Record Fee under Carson.” Transportation Construction Claims, 13 TEX. TECH. ADMIN. L.J. 233, 234 (2012) (“The projects range from In reaching his conclusion, however, our dissenting small landscaping and guardrail projects to major colleague fails to consider the entire breadth of subchapter interchanges.... TxDOT also supervises the construction G. For instance, the “DNA Database” provided for in of buildings for rest areas, area engineer’s offices, district chapter 411, subchapter G is used for a wide variety of offices, visitor’s centers, and other special purpose purposes, including “assisting in the recovery or buildings....”). identification of human remains from a disaster or for humanitarian purposes,” “assisting in the identification of *7 The court in Carson, which constitutes binding living or deceased missing persons,” “establishing a precedent on this Court,6 held that fees which are “neither population statistics database,” “assisting in identification necessary nor incidental to the trial of a criminal case” are research, forensic validation studies, or forensic protocol not legitimate courts costs that may be assessed against a development,” and “retesting to validate or update the defendant. 159 S.W.2d at 127, 130. As discussed above, original analysis or assisting in database or DNA the responsibilities of TxDOT, which under the Code of laboratory quality control.” Id. § 411.143(c) (Vernon Criminal Procedure is entitled to use thirty-five percent of 2012). And the database contains DNA records from a the revenue collected by the “DNA Record Fee,” do not whole host of individuals, such as “an unidentified relate to the trial of a criminal case. Instead, the missing person or unidentified skeletal remains or body responsibilities of TxDOT are far more remote from a parts,” “a close biological relative of a person who has criminal trial than the county law libraries which were to been reported missing,” and “a person at risk of becoming be used by the judges and attorneys for trial preparation in lost, such as a child or a person declared ... mentally Carson. Thus, it cannot be reasonably concluded that the incapacitated.” Id. § 411.142(g) (Vernon 2012). Notably, portion of the revenue collected through the “DNA none of the above statutory purposes or the individual Record Fee” and dedicated to the state highway fund records in the DNA Database relate to appellant’s constitutes a proper court cost to be assessed against criminal trial, despite the fact that thirty-five percent of appellant or any other criminal defendant. the revenue collected via the “DNA Record Fee” may be utilized by DPS to “defray the cost of administering” Accordingly, we hold that the portions of articles chapter 411, subchapter G.7 See id. § 411.145(c). 102.020(a)(1) and 102.020(h) requiring the collection of the “DNA Record Fee” from appellant to be dedicated the *8 The Texas Court of Criminal Appeals has clearly state highway fund constitute an unconstitutional tax. See favored a strict definition of what constitutes a legitimate Carson, 159 S.W.2d at 127, 130. But see O’Bannon v. court cost that may be assessed against a criminal State, 435 S.W.3d 378, 380–82 (Tex.App.–Houston [14th defendant. See Carson, 159 S.W.2d at 127; see also Dist.] 2014, no pet.). Salinas v. State, 426 S.W.3d 318, 329–30 (Tex.App.– Houston [14th Dist.] 2014, no pet.) (Jamison, J., We note that our dissenting colleague would not hold that dissenting) (explaining Carson constitutes binding the portion of the “DNA Record Fee” revenue dedicated precedent and “the Carson Court clearly favored a strict to the state highway fund is an unconstitutional tax. In definition of permissible ‘court costs’ in a criminal case”). doing so, he relies on Texas Government Code section And the revenue collected via the “DNA Record Fee” to 411.145(c), which provides that “[a] fee collected under be used by DPS for anything covered by chapter 411, this section shall be deposited in the state treasury to the subchapter G, or for crime laboratory accreditation under credit of the state highway fund, and money deposited to Government Code section 411.0205, is not closely the state highway fund under this section and under enough related to appellant’s criminal trial to be Articles 42.12 and 102.020(h), Code of Criminal considered constitutional. Procedure, may be used only to defray the cost of administering [chapter 411, subchapter G] and Section Appellant, again relying on Carson, next asserts that the 411.0205.” TEX. GOV’T CODE ANN. § 411.145(c) portion of the “DNA Record Fee” dedicated to the general (Vernon 2012); see also id. § 411.0205 (Vernon revenue fund of the criminal justice planning account also 15 constitutes an unconstitutional tax. this section do not supplant state or local funds; The criminal justice planning account is administered by (8) monitor and evaluate programs and projects the Criminal Justice Division (“CJD”) of the Governor’s funded under this section, cooperate with and render Office. See TEX. GOV’T CODE ANN. § 772.006(a)(2) technical assistance to state agencies and local (Vernon 2012). Appellant asserts that the CJD’s “mission governments seeking to reduce crime or enhance the is to create and support programs that protect people from performance and operation of the criminal justice crime, reduce the number of crimes committed, and to system, and collect from any state or local promote accountability, efficiency, and effectiveness government entity information, data, statistics, or within the criminal justice system.” He notes that it other material necessary to carry out the purposes of “focuses on the enhancement of Texas’[s] capacity to this section; prevent crime, provide service and treatment options, enforce laws, train staff and volunteers, and the *9 (9) submit a biennial report to the legislature restoration of crime victims to full physical, emotional reporting the division’s activities during the and mental health.” Appellant argues that because “the preceding biennium including the comprehensive courts [are] never mentioned” as part of the CJD’s state criminal justice plans and other studies, mission or focus, the revenue collected via the “DNA evaluations, crime data analyses, reports, or Record Fee” is not used by the CJD for services that are proposed legislation that the governor determines necessary or incidental to the trial of a criminal case. appropriate or the legislature requests; and The Texas Government Code reveals that the CJD was (10) perform other duties as necessary to carry out established to: the duties listed in this subsection and adopt rules and procedures as necessary. (1) advise and assist the governor in developing policies, plans, programs, and proposed legislation Id. for improving the coordination, administration, and effectiveness of the criminal justice system; In regard to the CJD’s administration of the criminal justice planning account, the legislature determines and (2) administer the criminal justice planning fund; appropriates the necessary amount of money from the criminal justice planning fund to the CJD. TEX.CODE (3) prepare a state comprehensive criminal justice CRIM. PROC. ANN. art. 102.056(a) (Vernon plan, to update the plan annually based on an Supp.2014). The CJD then uses this money to “[s]upport analysis of the state’s criminal justice problems and a wide range of projects designed to reduce crime and needs, and to encourage identical or substantially improve the criminal and juvenile justice systems.”8 CJD similar local and regional comprehensive criminal Funding Sources, OFFICE OF GOVERNOR, justice planning efforts; CRIMINAL JUSTICE DIV., 1, http://governor.state.tx.us/ files/cjd/CJD_Funding_Sources.pdf (last visited Dec. 16, (4) establish goals, priorities, and standards for 2014); see also TEX. CODE CRIM. PROC. ANN. art. programs and projects to improve the administration 102.056(a) (money from criminal justice planning fund of justice and the efficiency of law enforcement, the used by CJD “for state and local criminal justice judicial system, prosecution, criminal defense, and projects,” with not less than twenty percent of such adult and juvenile corrections and rehabilitation; money going to juvenile justice programs); Financial Services: Grants over $25,000 Administered by the Office (5) award grants to state agencies, units of local of the Governor, OFFICE OF GOVERNOR, government, school districts, and private, nonprofit http://governor.state.tx.us/financial-services/grants/ (last corporations from the criminal justice planning fund visited Dec. 16, 2014) (grants from criminal justice for programs and projects on consideration of the planning fund “support a wide range of projects designed goals, priorities, and standards recommended by the to reduce crime and improve the criminal [and] juvenile Criminal Justice Policy Council; justice systems”); Helpful Questions and Answers for Managing Grants, OFFICE OF GOVERNOR, (6) apply for, obtain, and allocate for the purposes of CRIMINAL JUSTICE DIV., B–12 (Feb.2014), this section any federal or other funds which may be http://governor.state.tx.us/ made available for programs and projects that files/cjd/CJD_Guide_to_Grants_v7.pdf (same). address the goals, priorities, and standards established in local and regional comprehensive Numerous entities are eligible to apply for grants from the criminal justice planning efforts or assist those criminal justice planning fund, including “[s]tate efforts; agencies, units of local government, independent school districts, nonprofit corporations, Native American tribes, (7) administer the funds provided by this section in COGs, universities, colleges, hospital districts, juvenile such a manner as to ensure that grants received under boards, regional education service centers, community 16 supervision and corrections departments, crime control roads upon which they ride.” 159 S.W.2d at 127. and prevention districts, and faith-based organizations.” CJD Funding Sources, supra, at 1; see also TEX. GOV’T Here, sixty-five percent of the revenue received through CODE ANN. § 772.006(a)(5) (CJD awards grants from the “DNA Record Fee” is dedicated by law to the general criminal justice planning fund “to state agencies, units of revenue fund of the criminal justice planning account in local government, school districts, and private, nonprofit order to “[s]upport a wide range of projects designed to corporations”); Press Release, Office of Governor, Gov. reduce crime and improve the criminal and juvenile Perry Awards $195,000 From State Criminal Justice justice systems.” See CJD Funding Sources, supra, at 1. Planning Funds (Jan. 28, 2008), http:// The recipients of money from the criminal justice governor.state.tx.us/news/press-release/5133/ (grant planning fund are vastly diverse and range from state recipients from criminal justice planning fund “include agencies to schools to hospitals and faith-based local units of government, independent school districts, organizations. Notably, the money from the criminal non-profit corporations, hospitals, universities, colleges, justice planning fund is not required to be directed to the community supervision and corrections departments, law courts or to services necessarily or incidentally related to enforcement agencies and councils of governments”). criminal trials. And often times such revenue is given to programs that, as the court in Carson specifically noted, *10 Moreover, the CJD has awarded money from the fund could not possibly relate to legitimate court costs. See 159 to a variety of recipients, such as the Alamo Area Council S.W.2d at 127 (costs for training and education not of Governments for Regional Police Training Academy, legitimate court costs that may be assessed against the Bastrop County Women’s Shelter for SAINT: Sexual criminal defendants). Accordingly, we cannot conclude Assault Integrated Nursing Team, Fort Bend County for that the criminal justice planning account, which is the “Saved by the Bell” Delinquency Reduction Program, funded by the “DNA Record Fee,” passes constitutional the Katy Christian Ministries for Counseling Services for muster. See Salinas, 426 S.W.3d at 330–31 (Jamison, J., Victims of Domestic Violence, and The Family Place for dissenting) (concluding court costs assessed pursuant to S.T.A.R.T. (Students Tackling Abusive Relationships Texas Local Government Code section 133.102, which Together). See, e.g., Press Release, Office of Governor directs approximately thirteen percent of its revenue to the Tex., Gov. Perry Awards $8 Million in Grants to Improve criminal justice planning fund, unconstitutional). Criminal Justice Systems (Sept. 10, 2008), http:// governor.state.tx.us/news/press-release/11114/ (listing The State argues that appellant has not shown that the seventy-nine recipients that received more than $8 million “DNA Record Fee” is unconstitutional because it “is a in grants from criminal justice planning fund); Press one-time fee of $250” and “is certainly applicable to Release, Office of the Governor of Tex., Gov. Perry appellant, as he was court-ordered to provide a DNA Awards $195,000 From State Criminal Justice Planning specimen in both sexual assault cases.” The State asserts Fund, supra (stating more than $195,000 in grants from that the “DNA Record Fee” was ordered “to reimburse criminal justice planning fund awarded to Wood County the State for expenses incurred as a result of the felony for Wood County Rural Prosecutor Project and prosecution [of appellant], specifically costs spent to BeyondMissing Inc. for Texas Amber Alert Network); obtain DNA specimens in certain cases.” And “[s]ince Press Release, Office of Governor, Governor Rick Perry this statutory assessment is reasonably related to the costs Announces Statewide Grant to Reduce School Dropouts of administering the criminal justice system, appellant has (Nov. 7, 2001), http:// governor.state.tx.us/ news/press- failed to show how the statute authorizing this court cost release/4229/ (announcing $168,146 criminal justice is unconstitutional.” planning fund grant to Behavioral Health Institute of Waco to assist with “efforts to reduce school failure, DPS is required to collect a DNA specimen from persons dropout rates, and juvenile crime”); see also Helpful convicted of certain crimes, including aggravated sexual Questions and Answers for Managing Grants, supra, at assault of a child less than fourteen years of age, and B–12 (listing activities eligible for grants from criminal maintain a database that includes, among others, these justice planning fund, such as job training, professional DNA specimens. See TEX. GOV’T CODE ANN. § therapy and counseling, school based delinquency 411.142 (directing DPS to maintain “computerized prevention, substance abuse, and peer support groups). database that serves as the central depository in the state for DNA records”); id. § 411.1471 (Vernon 2012) With this background in mind, we turn to the propriety of (requiring collection of DNA specimen from those the portion of the revenue collected via the “DNA Record convicted of certain crimes). As asserted by the State, Fee” dedicated to the criminal justice planning account funds from the criminal justice planning account may be and to be used by the CJD. As the Texas Court of used by the CJD to reimburse DPS and other law Criminal Appeals explained in Carson, adopting a less enforcement agencies for expenses incurred in performing than strict definition of what constitutes a legitimate court duties required by Texas Government Code section cost “would lead into fields of expenditures which may as 411.1471, namely the taking of a DNA specimen from a well include the cost of the court houses, the automobiles defendant, preserving of the specimen, and maintaining a which officers use to apprehend criminals and even the collection of the specimen. See TEX.CODE CRIM. 17 PROC. ANN. art. 102.056(e); TEX. GOV’T CODE account provides services that are necessary or incidental ANN. § 411.1471. to the trial of a criminal defendant’s case. See Carson, 159 S.W.2d at 127, 130; see also Salinas, 426 S.W.3d at *11 Notably though, reimbursement for expenses related 332 (Jamison, J., dissenting) (“Although it appears some to the collection and maintenance of DNA specimens is of the funds that go to the fair defense account may not automatic or guaranteed under Texas Code of ultimately help provide counsel for indigent criminal Criminal Procedure article 102.056(e); the statute only defendants, it does not appear that this is the sole use that provides that DPS will be reimbursed with funds from the can be made for these funds.... It therefore cannot be said criminal justice planning account after it complies with that either the training fund or the fair defense account are certain procedures. See TEX. CODE CRIM. PROC. necessary or incidental expenses in the trial of appellant’s ANN. art. 102.056(e) (law enforcement agency, incurring criminal case.”). expenses in previous calendar quarter, must, on first day after end of calendar quarter, send certified statement of Accordingly, we hold that the portions of article costs incurred to CJD). Thus, although appellant provided 102.020(a)(1) and article 102.020(h) requiring the a DNA specimen to DPS in accordance with section collection of the “DNA Record Fee” from appellant to be 411.1471 in conjunction with his cases, it cannot be dedicated to the general revenue fund of the criminal assumed that DPS was automatically reimbursed by virtue justice planning account constitute an unconstitutional of the “DNA Record Fee” for any expenses associated tax. See Carson, 159 S.W.2d at 127, 130. But see with the collection of his specimen. O’Bannon, 435 S.W.3d at 381. Further, we note that even if we presume that some of the *12 We note that our sister court has recently criticized revenue collected pursuant to the “DNA Record Fee” is the reasoning of the Texas Court of Criminal Appeals actually used to reimburse DPS or other law enforcement opinion in Carson as “ ‘both abbreviated and bereft of agencies for collecting DNA specimens from criminal citations to supporting authority.’ ” O’Bannon, 435 defendants, preserving such specimens, and maintaining a S.W.3d at 381 (quoting Salinas, 426 S.W.3d at 326). In record of such collections, it is readily apparent that this is “[a]ssuming arguendo that Carson requires a statute not the only way in which the revenue is used. Sixty-five imposing court costs to be ‘necessary or incidental to the percent of the revenue collected through the “DNA trial of a criminal case,’ ” the Fourteenth Court of Record Fee” is dedicated to the general revenue fund of Appeals held that the defendant’s facial constitutional the criminal justice planning account. As outlined above, challenge to article 102.020 failed because he did not money in the criminal justice planning fund is given to a “establish[ ] how the funds will be used once they are vast number of diverse entities, almost of none of which distributed to the state highway fund and the criminal have any relation to the collection of a defendant’s DNA justice planning account.” Id. at 381–82. It asserted that specimen or a criminal trial. See, e.g., TEX. CODE the defendant merely “infer[ed]” that revenue collected CRIM. PROC. ANN. art. 102.056(a) (money from pursuant to article 102.020(a)(1) will “flow ‘directly to criminal justice planning fund is used for “state and local the executive branch [to be] used for policy purposes’ ” or criminal justice projects,” with not less than twenty to the state highway fund, “not [to] be used for purposes percent of such funds directed to juvenile justice necessary or incidental to DNA collection or testing.” Id. programs); TEX. GOV’T CODE ANN. § 772.006(a)(5) at 382. (CJD awards grants from criminal justice planning fund “to state agencies, units of local government, school We respectfully disagree with our sister court for the districts, and private, nonprofit corporations”); Press reasons outlined above. In short, we first note that the Release, Office of Governor, Gov. Perry Awards $8 reasoning of the Texas Court of Criminal Appeals in Million in Grants to Improve Criminal Justice Systems, Carson is sound and it constitutes binding precedent upon supra (listing seventy-nine recipients that received more it and lower courts. See Reed v. Buck, 370 S.W.2d 867, than $8 million in grants from criminal justice planning 870–71 (Tex.1963) (explaining simply because certain fund); Press Release, Office of Governor, Gov. Perry cases had “not been cited in recent years,” such “ancient Awards $195,000 from State Criminal Justice Planning cases” do not “just fade[ ] away”; instead, “unless there is Funds, supra (stating more than $195,000 in grants from some good reason for overruling them, they should not be criminal justice planning fund awarded to Wood County disregarded”); Purchase v. State, 84 S.W.3d 696, 701 for Wood County Rural Prosecutor Project and (Tex.App.–Houston [1st Dist.] 2002, pet. ref’d) (“[W]e BeyondMissing Inc. for Texas Amber Alert Network); are bound by the decisions of our state’s highest criminal Press Release, Office of Governor, Governor Rick Perry court.”). Second, we note that criminal defendants Announces Statewide Grant to Reduce School Dropouts, similarly situated to appellant are not asking appellate supra (announcing $168,146 criminal justice planning courts to “infer” how the revenue from the “DNA Record fund grant to Behavioral Health Institute of Waco to assist Fee” will be directed. As discussed above, the revenue, by with “efforts to reduce school failure, dropout rates, and statute, is dedicated by law for expenditures that are far juvenile crime”). Thus, it cannot be reasonably concluded removed from actual “court costs.” A plain reading of the that the revenue dedicated to the criminal justice planning pertinent statutes reveals this undeniable fact. 18 requires him to “establish that no set of circumstances We sustain appellant’s third issue.9 exists under which the statute will be valid.” Santikos v. State, 836 S.W.2d 631, 633 (Tex.Crim.App.1992); see also State v. Rosseau, 396 S.W.3d 550, 557 (Tex.Crim.App.2013). In my view, Appellant has not shown that every application of the statue violates the Conclusion Carson standard. I would, therefore, affirm the Having held that the “DNA Record Fee” assessed against constitutionality of the fee. appellant pursuant to article 102.020(a)(1) and article 102.020(h) constitutes an unconstitutional tax, we modify each judgment to delete the $250 charge from the assessed court costs. See Cates v. State, 402 S.W.3d 250, A. Reviewing a facial challenge 252 (Tex.Crim.App.2013) (holding proper remedy when When reviewing the constitutionality of a statute, “an trial court erroneously includes amounts as court costs is appellate court must presume that the statute is valid and to modify judgment to delete erroneous amounts); that the legislature was neither unreasonable nor arbitrary Sturdivant v. State, 445 S.W.3d 435, 443 (Tex.App.– in enacting it.” Curry v. State, 186 S.W.3d 39, 42 Houston [1st Dist.] 2014, pet. ref d) (holding trial court (Tex.App.–Houston [1st Dist.] 2005, no pet.) (citing Ex erroneously included attorney pro tern fees as court costs parte Granviel, 561 S.W.2d 503, 511 and modifying judgment accordingly); see also TEX. R. (Tex.Crim.App.1978)). A reviewing court must make APP. P. 43.2(b). every reasonable presumption in favor of the statute’s constitutionality, unless the contrary is clearly shown. Further, as noted above, having held that there is no basis Granviel, 561 S.W.2d at 511; see TEX. GOV’T CODE in the record to support the charge for “serving capias,” ANN. § 311.021 (West 2013) (noting that courts presume we also modify each judgment to delete the $50 charge “compliance” with Texas and United States from the assessed court costs. See French, 830 S.W.2d at Constitutions). 609 (agreeing “appellate court has authority to reform a [trial court] judgment to ... make the record speak the To prevail, the party asserting a facial challenge “must truth when the matter has been called to its attention by establish that the statute always operates any source”); Nolan, 39 S.W.3d at 698 (“An appellate unconstitutionally in all possible circumstances.” court has the power to correct and reform a trial court Rosseau, 396 S.W.3d at 557. When construing a statute, judgment ‘to make the record speak the truth when it has courts consider, among other factors, the object sought to the necessary data and information to do so ....’ ” (quoting be attained by the legislation, laws on the same or similar Asberry, 813 S.W.2d at 529)); see also TEX. R. APP. P. subjects, and the consequences of a particular 43.2(b). construction. TEX. GOV’T CODE ANN. § 311.023 (West 2013); see State v. Neesley, 239 S.W.3d 780, 784 *13 We affirm the judgment of the trial court as modified. (Tex.Crim.App.2007); Nguyen v. State, 1 S.W.3d 694, 696–97 (Tex.Crim.App.1999); see also Dowthitt v. State, 931 S.W.2d 244, 258 (Tex.Crim.App.1996). If a statute Harvey Brown, Justice, Concurring and Dissenting can be reasonably interpreted in a manner that does not offend the constitution, a reviewing court must overrule a I join with the Court’s conclusions that the trial court did facial challenge to the statute’s constitutionality. Curry, not abuse its discretion in denying Appellant’s motion to 186 S.W.3d at 42. withdraw his guilty pleas and that the judgment should be modified, striking the unsupported “Sheriff’s Fee” assessed in both cases. However, I disagree with the Court’s conclusion that the “DNA Record Fee”1 is B. Constitutionality of the DNA Record Fee benefiting unconstitutional. the criminal-justice planning account *14 Appellant argues that the DNA Record Fee unconstitutionally benefits the criminal-justice planning account because the account is “too remote” to be considered a necessary or incidental cost of prosecuting a Facial Challenge to the DNA Record Fee criminal case as required under Carson, 159 S.W.2d at Appellant argues that the statute authorizing collection of 127 (concluding that law library fee is remote and the fee is facially unconstitutional under the separation- unconstitutional). The Court agrees and cites several of-powers clause of the Texas Constitution. TEX. possible uses of money from the criminal-justice planning CONST. art. II, § 1. Under that provision, a statute account that are not related to the prosecution of a authorizing a court to collect costs “neither necessary nor criminal case. This approach is contrary to the standard incidental to the trial of a criminal case” is not valid. Ex that applies to claims that a statute is facially parte Carson, 143 Tex.Crim. 498, 159 S.W.2d 126, 127 unconstitutional because (1) it diminishes the challenger’s (1942). Appellant makes only a facial challenge, which 19 burden to demonstrate that all—not some—applications through a grant [of money from the of a statute are unconstitutional; and (2) it runs afoul of criminal-justice planning account] precedent by favoring an unconstitutional reading over a shall reimburse the law constitutional reading when construing statutes. I would enforcement agency for the costs construe the criminal-justice planning account in its not later than the 30th day after the statutory context, situated among related statutes, and date the certified statement is conclude that Appellant has not demonstrated that all received. If the criminal justice applications of the statute are unconstitutional under the division does not reimburse the law Carson standard. enforcement agency before the 90th day after the date the certified The Department of Public Safety (“DPS”) is required to statement is received, the agency is collect a DNA specimen from every person charged with not required to perform duties certain categories of crimes, including the crime involved imposed under Section 411.1471 or here—aggravated sexual assault of a child under 14 years Subchapter B–1, Chapter 420, of age—and to create a database cataloging the DNA Government Code, as applicable, specimens. TEX. GOV’T CODE ANN. § 411.142 (West until the agency has been 2012) (directing DPS to maintain “computerized database compensated for all costs for which that serves as the central depository in the state for DNA the agency has submitted a certified records” that is compatible with FBI’s national DNA statement under this subsection. identification index system); id. § 411.1471 (West 2012) (requiring collection of DNA specimens from people Id. Thus, the Court’s skepticism is unjustified given the charged with or convicted of certain crimes, including wording of the statute regarding reimbursement to fund aggravated sexual assault of child under 14 years of age); the DNA project. TEX. PENAL CODE ANN. § 22.021 (West Supp.2014) (defining aggravated sexual assault of child under 14 The Court also insists that, even if DPS were reimbursed, years of age). The criminal-justice planning account the fee is nevertheless unconstitutional because the allocates funds toward the collection and management of criminal-justice planning account funds other unrelated this statewide criminal DNA database. See TEX.CODE projects. Following this analysis, it would be enough for a CRIM. PROC. ANN. art. 102.056 (West Supp.2014). party bringing a facial constitutional challenge to show Specifically, subsection (e) of article 102.056 directs the that some possible applications of a statute are Legislature to unconstitutional to justify invalidating every application of that statute. That is the wrong standard. See Santikos, determine and appropriate the 836 S.W.2d at 633 (“[T]he challenger must establish that necessary amount from the criminal no set of circumstances exists under which the statute will justice planning account to the be valid.”). While money from the criminal-justice criminal justice division of the planning account apparently funds other programs in governor’s office for addition to the DNA database, Appellant presents no reimbursement in the form of evidence that the DNA Record Fee revenue does anything grants to the Department of Public more than reimburse the criminal-justice planning account Safety of the State of Texas and for its DNA-database expenditures. Appellant appears to other law enforcement agencies for concede that reimbursement for these expenditures would expenses incurred in performing not violate Carson. I agree. duties imposed on those agencies under Section 411.1471 or *15 I would hold that collecting the DNA Record Fee to Subchapter B–1, Chapter 420, benefit the criminal-justice planning account is Government Code, as applicable. constitutional because these funds may be allocated to the statewide criminal DNA database. Because such an Id. allocation would be constitutional, Appellant fails to meet his burden of showing that every application of the statute After looking outside the record to press releases and web would result in constitutional injury. See Rosseau, 396 sites, the Court insists that “it cannot be assumed that S.W.3d at 557 (noting moving party has burden of DPS was automatically reimbursed by virtue of the ‘DNA demonstrating statute’s unconstitutionality in “all its Record Fee’ for any expenses associated with the possible applications.”). Accordingly, I would conclude collection of [Appellant’s] sample” and therefore the fee that Appellant has failed to demonstrate that the portion is an unconstitutional tax. This conclusion does not of the DNA Record Fee that benefits the criminal-justice account for the remainder of subsection (e), which planning account is an unconstitutional tax. continues: The criminal justice division 20 C. Constitutionality of the DNA Record Fee benefiting Fee revenue in the state highway fund to DPS for DNA the state highway fund sampling and crime-lab accreditation prevails over the Likewise, Appellant has not demonstrated that the portion general statute relied upon by the Court. of the DNA Record Fee that benefits the state highway fund is facially invalid. Pursuant to article 102.020(h) of I would further hold that paying for DNA sampling and the Texas Code of Criminal Procedure, a portion of crime-lab accreditation is a valid, constitutional use of the collected DNA Record Fee revenue goes into the state DNA Record Fee under Carson. The trial court ordered highway fund. “[M]oney deposited to the state highway Appellant to surrender a DNA sample as part of the fund under ... 102.020(h), Code of Criminal Procedure, investigation of this case. The fee is therefore “necessary may be used only to defray the cost of administering or incidental” to the trial of Appellant’s case. See [subchapter G of chapter 411] and Section 411.0205” of generally TEX. GOV’T CODE ANN. § 411.143(a) (West the Texas Government Code. TEX. GOV’T CODE ANN. 2012) (“The principal purpose of the DNA database is to § 411.145 (West 2012). Subchapter G governs the assist a federal, state, or local criminal justice agency in collection and management of DNA samples, including the investigation or prosecution of sex-related offenses or Appellant’s, by DPS. See TEX. GOV’T CODE ANN. § other offenses in which biological evidence is 411.1471. Section 411.0205 regulates the accreditation of recovered.”). forensic crime laboratories by DPS. TEX. GOV’T CODE ANN. § 411.0205 (West 2012). Thus, under the Texas *16 The Court concludes that the fee is an Government Code, the portion of the DNA Record Fee unconstitutional tax because the revenue could possibly credited to the state highway fund is used to defray the benefit other activities unrelated to the statewide DNA costs associated with collecting, storing, and testing DNA database. In doing so, the Court again relies on web sites samples. outside the record because Appellant has provided no record evidence of how the funds are expended and The Court relies on section 222.002 of the Texas relieves Appellant of his burden when bringing a facial Transportation Code, which states that money in the state constitutional challenge. highway fund not earmarked for public roadways “may be used for any function performed by” the Texas Because Appellant has not demonstrated that every Department of Transportation (“TxDOT”). TEX. application of the statutes assigning DNA Record Fee TRANSP. CODE ANN. § 222.002 (West 2011) revenue to the state highway fund would be (emphasis added). TxDOT does not manage DNA-sample unconstitutional, I would conclude that Appellant did not collection, management, or testing. But TxDOT does not demonstrate that the portion of the DNA Record Fee that have exclusive access to the state highway fund. Rather, benefits the state highway fund is facially the Transportation Code simply states a general rule that unconstitutional. TxDOT “may” access the fund. In contrast, the Government Code provides a specific rule that money from the DNA Record Fee in the state highway fund “may be used only” by DPS to defray the cost of administering the DNA database. TEX. GOV’T CODE Conclusion ANN. § 411.145 (emphasis added). Having determined that both portions of the DNA Record Fee—the 65% that benefits the criminal-justice planning When two statutes concern the same issue, the two should account and the 35% that benefits the state highway be read together as one law, and an appellate court should fund—are sufficiently related to the prosecution of a attempt to harmonize any conflicting provisions. Garrett criminal case, I would conclude that Appellant failed to v. State, 424 S.W.3d 624, 629 (Tex.App.–Houston [1st satisfy his burden of demonstrating that the DNA Record Dist.] 2013, pet. ref d). If this is not possible, specific Fee is facially unconstitutional. Accordingly, I rules prevail over general provisions, absent contrary respectfully dissent. legislative intent. Id.; Azeez v. State, 248 S.W.3d 182, 192 (Tex.Crim.App.2008). In light of these principles, I would hold that the statute specifically assigning DNA Record Footnotes 1 See TEX. PENAL CODE ANN. § 22.021 (Vernon Supp.2014). 2 See TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(2) (Vernon Supp.2014) (imposing $50 charge “for executing or processing an issued arrest warrant, capias, or capias pro fine”). 3 See id. art. 102.011(a)(1) (imposing $5 charge for arrest without warrant). 21 4 See TEX. CODE CRIM. PROC. ANN. art. 102.020(a)(1) (Vernon Supp.2014) (authorizing collection of $250 fee from persons convicted of offenses listed in Texas Government Code section 411.1471(a)(1)). We refer to the fee assessed pursuant to article 102.020(a)(1) as a “DNA Record Fee” because it is so labeled in the trial court clerk’s bill of costs in each case. 5 Although our dissenting colleague calls into question the reliance on information available through the Texas Department of Transportation’s website, we note that this Court and others have repeatedly taken judicial notice of information available on various websites, including governmental websites. See TEX. R. EVID. 201; see, e.g., Payan v. State, 199 S.W.3d 380, 383 & n. 4 (Tex.App.–Houston [1st Dist.] 2006, pet. ref’d) (taking judicial notice of information available on “[t]he State Library and Archives Commission website”); see also Chen v. Hernandez, No. 03–11–00222–CV, 2012 WL 3793294, at *14 (Tex. App.– Austin Aug. 28, 2012, pet. denied) (mem. op.) (noting trial court took judicial notice of “government websites,” including “website for the U.S. Department of State”); Hayden v. State, 155 S.W.3d 640, 647 (Tex.App.–Eastland 2005, pet. ref’d) (taking judicial notice of information available on “website of the United States Naval Observatory”). 6 See Reed v. Buck, 370 S.W.2d 867, 870–71 (Tex.1963) (explaining simply because certain cases had “not been cited in recent years,” such “ancient cases” do not “just fade[ ] away”; instead, “unless there is some good reason for overruling them, they should not be disregarded”); Purchase v. State, 84 S.W.3d 696, 701 (Tex.App.–Houston [1st Dist.] 2002, pet. ref’d) (“[W]e are bound by the decisions of our state’s highest criminal court.”). 7 We also note that under chapter 411, subchapter G, the DPS director is assigned numerous responsibilities, including “develop[ing] biennial plans” to “improve the reporting and accuracy of the DNA [D]atabase,” “audit[ing] the records, reports, procedures, or other quality assurance matters of any DNA laboratory,” and providing “training for collection of DNA samples,” none of which are responsibilities that are “necessary [or] incidental to the trial of a criminal case.” See TEX. GOV’T CODE ANN. §§ 411.142(e), 411.144(c), 411.146(b) (Vernon 2012); Ex Parte Carson, 143 Tex.Crim. 498, 159 S.W.2d 126, 127, 130 (1942) (discounting notion funds for training constitute legitimate court costs). 8 We again note that our dissenting colleague calls into question the reliance on information available through the website of the Office of the Governor. However, as stated previously, this Court and others have repeatedly taken judicial notice of information available on various websites, including governmental websites. See TEX. R. EVID. 201; see, e.g., Payan, 199 S.W.3d at 383 & n. 4; see also Chen, 2012 WL 3793294, at *14; Hayden, 155 S.W.3d at 647. 9 In his fourth issue, appellant argues that the trial court erred in not granting him a hearing on his motions for new trial and in arrest of judgment because “[t]o properly challenge the constitutionality of the DNA fees and the faulty Sheriff’s fee, a hearing was necessary.” Appellant filed his motions in the trial court asserting that “[t]he fees from the Sheriff reflected on the bill[s] of costs are wholly unsupported and erroneous” and “[t]he DNA court costs are unconstitutional.” Given our disposition of appellant’s second and third issues, we do not reach the issue of whether the trial court erred in not granting appellant a hearing on his motions for new trial and in arrest of judgment. See TEX. R. APP. P. 47.1. 1 See TEX. CODE CRIM. PROC. ANN. art. 102.020(a)(1) (West Supp.2014) (“A person shall pay as a cost of court: (1) $250 on conviction of an offense listed in Section 411.1471(a)(1), Government Code”). 22