P0100-15 PD-0100&0101-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 1/30/2015 8:24:28 AM Accepted 2/4/2015 9:16:04 AM ABEL ACOSTA PD ________ CLERK IN THE COURT OF CRIMINAL APPEALS OF TEXAS _______________________________________________ OSMIN PERAZA, Appellant, v. THE STATE OF TEXAS, Appellee. _______________________________________________ On Petition for Discretionary Review from the First Court of Appeals in Nos. 01-12-00690-CR and 01-12-00691-CR affirming the conviction in cause numbers 1305483 and 1305439, From the 184th District Court of Harris County, Texas _______________________________________________ APPELLANT’S PETITION FOR DISCRETIONARY REVIEW _______________________________________________ ORAL ARGUMENT NOT REQUESTED ALEXANDER BUNIN Chief Public Defender Harris County, Texas JANI MASELLI WOOD Assistant Public Defender Harris County, Texas TBN. 00791195 1201 Franklin Street, 13th Floor February 4, 2015 Houston, Texas 77002 Phone: (713) 368-0016 Fax: (713) 368-9278 Counsel for Appellant January 25, 2015 IDENTITY OF PARTIES AND COUNSEL APPELLANT: Osmin Peraza TDCJ-ID# 01798603 Garza West 4250 Highway 202 Beeville, TX 78102 TRIAL PROSECUTOR: Ms. Sarah Bruchmiller Assistant District Attorney Harris County, Texas 1201 Franklin, 6th Floor Houston, Texas 77002 APPELLATE PROSECUTOR: Jessica Akins Assistant District Attorney Harris County, Texas 1201 Franklin St., 13th Floor Houston, TX 77002 DEFENSE COUNSEL AT TRIAL: Ms. Emily Detoto 3000 Smith, Suite 4 Houston, Texas 77006 PRESIDING JUDGE: Hon. Jan Krocker 184th District Court, Harris County 1201 Franklin, 17th floor Houston, Texas 77002 DEFENSE COUNSEL ON APPEAL: Jani Maselli Assistant Public Defender Harris County, Texas 1201 Franklin, 13th Floor Houston, Texas 77002 i TABLE OF CONTENTS PAGE Identity of Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Ground for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Reason for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Argument The Court of Appeals erred in determining there was no evidence Mr. Peraza’s guilty pleas were coerced. The trial attorney stated on the record that Mr. Peraza was pressured into making his plea. Did the Court of Appeals err in holding that the trial court did not abuse its discretion in refusing to allow Mr. Peraza to withdraw his guilty plea?.. . . . 6 Court of Appeals’ Opinion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Involuntary plea.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 The record is silent as to the plea colloquy. . . . . . . . . . . . . . . . . . . . . . . . . . 10 Prayer for Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 ii Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Attached iii INDEX OF AUTHORITIES PAGE Cases: Boykin v. Alabama, 395 U.S. 238 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Brady v. United States, 397 U.S. 742 (1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8 Carranza v. State, 980 S.W.2d 653 (Tex. Crim. App. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Ex Parte Lewis, 587 S.W.2d 697 (Tex. Crim. App. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Fisher v. State, 104 S.W.3d 923 (Tex. App.-Houston [14th Dist.] 2003, no pet.). . . . . . . . 10 Houston v. State, 201 S.W.3d 212 (Tex. App.-Houston [14th Dist.] 2006, no pet.) . . . . . . . . 11 Jackson v. State, 590 S.W.2d 514 (Tex. Crim. App. [Panel Op.] 1979). . . . . . . . . . . . . . . . . . 10 Martinez v. State, 981 S.W.2d 195 (Tex. Crim. App.1998) . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11 McWherter v. State, 571 S.W.2d 312 (Tex. Crim. App.1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Peraza v. State, No. 01-12-00690-CR, No. 01-12-00691-CR, 2014 WL 7476214 (Tex. App. – Houston [1st Dist.] December 30, 2014, no pet. history).p.assim iv North Carolina v. Alford, 400 U.S. 25 (1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Statutes and Rules TEX. PENAL CODE § 22.021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 TEX. R. APP. P. 66.3(C).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Other References Bryan A. Garner, Garner’s Dictionary of Legal Usage 10 (Oxford Univ. Press, 3d Ed. 2011)(1987)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10 W. Wendell Hall, Hall’s Standard of Review in Texas, 42 St. Mary’s L.J. 3, 16 (2010). 9 v STATEMENT REGARDING ORAL ARGUMENT Oral argument is not requested. STATEMENT OF THE CASE This is an appeal from two separate cause numbers: 1305438 and 1305439.1 Mr. Peraza pled guilty to two different felony offenses of aggravated sexual assault of a child. (C.R.1 at 59; C.R.2 at 61). See TEX. PENAL CODE § 22.021. The Court took the plea under advisement and a PSI hearing was held. (C.R.1 at 144; C.R.2 at 146). At the PSI hearing, Mr. Peraza sought to withdraw his guilty plea, but the court denied the request. (2 R.R. at 6-9). After the presentation of witnesses, the court sentenced Mr. Peraza to 25 years imprisonment on each case to run concurrently. (C.R.1 at 73; C.R.2 at 75; 2 R.R. at 39). Motions for new trial and motions in arrest of judgment were filed in both cases on August 13, 2012. (C.R.1 at 91, 116; C.R.2 at 94, 120). On August 16, 2012, the motions were presented and the court denied a hearing and denied the motions that same day. (C.R.1 at 113-15, 139-41; C.R.2 at 117-19, 143-45). Notice of appeal was timely filed. (C.R.1 at 78; C.R.2 at 80). 1 Cause Number 1305438 [01-12-00690-CR] will be designated as C.R.1 and Cause Number 1305439 [01-12-00691-CR] will be designated as C.R.2. There is only one reporter’s record for both cause numbers. -1- STATEMENT OF THE PROCEDURAL HISTORY In a published opinion, the First Court of Appeals affirmed Mr. Peraza’s conviction, but modified the judgment as to certain court costs. Peraza v. State, No. 01-12-00690-CR, No. 01-12-00691-CR, 2014 WL 7476214 (Tex. App. – Houston [1st Dist.] December 30, 2014, no pet. history). There was a concurring and dissenting opinion by Justice Brown concurring to the affirming of the conviction and dissenting to the modification of the judgment. Id. No motion for rehearing was filed. This petition is timely if filed on or before January 30, 2015. -2- GROUND FOR REVIEW The Court of Appeals erred in determining there was no evidence Mr. Peraza’s guilty pleas were coerced. The trial attorney stated on the record that Mr. Peraza was pressured into making his plea. Did the Court of Appeals err in holding that the trial court did not abuse its discretion in refusing to allow Mr. Peraza to withdraw his guilty plea? REASON FOR REVIEW The First Court of Appeals has decided an important question of state or federal law in a way that conflicts with the applicable decisions of the Court of Criminal Appeals or the Supreme Court of the United States. TEX. R. APP. P. 66.3(C). STATEMENT OF FACTS RELATIVE TO GROUND RAISED Mr. Peraza pled guilty to two different indictments - both alleging aggravated sexual assault of a child under 14. (C.R.1 2, 59; C.R.2 at 2, 75). The docket sheets reflect that on May 3, 2012: Defendant waived arraignment and entered a plea of GUILTY. Defendant, appearing to be sane, is admonished by the Court of the consequences of said plea. Penalty recommendation of the State is: WITHOUT AN AGREED RECOMMENDATION/PSI HEARING. The Court found sufficient evidence of guilt but made no finding of guilt. RESET FOR SENTENCING. (C.R.1 at 144; C.R.2 at 146). At the start of the PSI hearing, the following colloquy occurred: -3- MS. DETOTO: On behalf of the defendant, Mr. Osmin Peraza, I am requesting that his guilty plea to the offenses be withdrawn. According to the Presentence report and my conversations with Mr. Peraza, Mr. Peraza was coerced into confessing to this offense. He, according to the offense report, did a polygraph; and they informed him that he failed. Immediately thereafter, coincidentally, he confesses to the offenses. It's my opinion that that -- the initial confession was coerced; and but for that act of coercion on the part of law enforcement, Mr. Peraza never would have pled guilty to the offense on the trial date. If you looked at the date that his guilty pleas took place, it happened to be while the jury was on the way on the trial date, which leads further -- which is further evidence that his guilty pleas were coerced. And as further evidence that – THE COURT: I'm sorry. You're saying that having the jury on the way is a form of coercion? MS. DETOTO: I am, Your Honor. And that's why Mr. Peraza felt pressured to make that decision. Thirdly, Your Honor, the PSI, in his version of the offense, he denies the offense; and so, that would be evidence that his guilty pleas were not freely and voluntarily made. So, I'm asking you for permission to withdraw his guilty pleas in both offenses. I note -- I have a feeling that somewhere down the road, if we do not do that today, a Motion for New Trial would be filed, alleging the very same things that I'm alleging. We might have to have a hearing on that Motion for New Trial, and I would just hate for us to have to do this all over again, for the victim's sake. So, I'm respectfully asking that the guilty pleas be withdrawn. I have had cases that have lasted a lot longer than Mr. Peraza's case. We just tried one in here, and I don't think that -- my request to withdraw the guilty pleas are not made for the purposes of delay, but so justice can be actually served in this case. -4- He didn't get his day in court. I know hindsight is 20/20, but he has asked me to ask you to give him permission to withdraw the guilty pleas. THE COURT: Thank you very much. Does the State wish to be heard on this? MS. BRUCHMILLER: Your Honor, he did get his day in court. The case was originally filed on May 7, 2011; and Mr. Peraza pled guilty to both cases on May 3, 2012. There was ample opportunity. If he wanted to go to trial, he could have pled not guilty; and we could have had a trial. Both sides were ready on the day of trial. He did meet with an officer when this case was being investigated back in May of 2012; and during the time with that officer, he confessed to committing this offense on two different occasions. I think he had counsel who had been with the case, I believe, from the beginning, for several months at least, who was working with us regarding our plans as far as whether or not we were going to go to trial. There were several cases set that day; other defendants, as well. So, I don't believe there was any coercion on the part of the Court; and certainly I never talked to the defendant. But I feel like his plea was voluntarily made, and you asked him that during the -- sorry, sorry -- during the time of his plea. THE COURT: Thank you. I will note that I would not have taken his plea, Mr. Peraza's plea, if I had not believed at the time he was entering it freely and voluntarily. Your motion is denied. (2 R.R. at 6-9). During this exchange, the prosecutor averred that Mr. Peraza had confessed to Officer Montoya. (2 R.R. at 10). The PSI report, which the court had a copy of, -5- unequivocally stated Mr. Peraza denied the offense and stated the complainant was lying. (3 R.R. SX-1 PSI page 2, 5). During the PSI hearing, the father of the complainant testified he was very upset that Mr. Peraza had sexually assaulted his daughter. (2 R.R. at 12-20). Mr. Peraza’s wife testified she did not believer her husband committed the assaults and was a good man and good father. (2 R.R. at 26-29). The trial court sentenced Mr. Peraza to 25 years imprisonment on each case, to run concurrently. (2 R.R. at 39). -6- ARGUMENT The Court of Appeals erred in determining there was no evidence Mr. Peraza’s guilty pleas were coerced. The trial attorney stated on the record that Mr. Peraza was pressured into making his plea. Did the Court of Appeals err in holding that the trial court did not abuse its discretion in refusing to allow Mr. Peraza to withdraw his guilty plea? Court of Appeals’ Opinion The Court of Appeals held that despite there being no record of the guilty plea to support Mr. Peraza’s case, there was sufficient evidence the plea was voluntarily made: The record, however, contains no evidence that anyone coerced appellant into pleading guilty. Appellant voluntarily submitted to a polygraph test, and neither his failure of the polygraph test, nor the immediacy of a jury trial, constituted a threat, misrepresentation, or improper promise. Thus, appellant has not overcome the presumption that he knowingly and voluntarily entered his pleas. Peraza, 2014 WL 7476214, at *3. The Court of Appeals determined the statements on the record by Mr. Peraza’s trial attorney insufficient to support the contention that the pleas were involuntary. This is classically unfair when the absence of evidence to support the plea is disregarded. See Peraza, 2014 WL 7476214, at *2 (explaining “[h]ere, the absence of a recorded plea colloquy, alone, does not overcome the presumption that appellant was properly admonished and understood the consequences and nature of his pleas.). -7- Involuntary plea In Brady v. United States, 397 U.S. 742 (1970), "[t]he standard as to the voluntariness of guilty pleas" was set forth as follows: [A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats, ... misrepresentations (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecution's business (e.g., bribery). See also, Ex Parte Lewis, 587 S.W.2d 697, 700 (Tex. Crim. App. 1979) (requirement of due course of law extends to guilty pleas). The likelihood of loss of liberty based on a plea of guilty “demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence.” Boykin v. Alabama, 395 U.S. 238, 243-44 (1969). It is axiomatic that a guilty plea must be voluntary and intelligent to satisfy due process requirements. Boykin, 395 U.S. at 242-43. As the Court opined: a plea of guilty is more than an admission of conduct; it is a conviction. Ignorance, incomprehension, ... might be a perfect cover-up of unconstitutionality. Boykin, 395 U.S. at 242-43, 89 S.Ct. at 1712. The test to determine the validity of a guilty or no contest plea is “whether the plea represents a voluntary and intelligent -8- choice among the alternative courses of action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31 (1970). Due process requires that a defendant be both advised of and understand the direct consequences of a plea. Brady, 397 U.S. at 755. The Supreme Court, citing Judge Tuttle of the Fifth Circuit, stated the standard as to the voluntariness of guilty pleas: [A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by ... misrepresentation ... 242 F.2d at page 115. (emphasis supplied). Brady, 397 U.S. at 755. (footnotes omitted). In Carranza v. State, 980 S.W.2d 653, 656 (Tex. Crim. App. 1998), this Court reasoned: ... if a defendant’s guilty plea is not equally knowing and voluntary, it has been obtained in violation of due process and is therefore void. Moreover, because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts. (emphasis supplied). Carranza, 980 S.W.2d at 656. The record is silent as to what Mr. Peraza was told or explain on the day of his plea. The record is not silent regarding his desire to withdraw his guilty plea before he was found guilty and sentenced. Constitutional protections such as this, while reviewed under an abuse of discretion, are far too valuable to disregard. -9- Mr. Peraza wanted to withdraw his guilty plea. (2 R.R. at 6-9). The trial court’s summary dismissal of the request was an abuse of discretion. Standard of Review Where a defendant decides to withdraw his guilty plea after the trial judge takes the case under advisement or pronounces judgment, the withdrawal of such plea is within the sound discretion of the trial court. McWherter v. State, 571 S.W.2d 312 (Tex. Crim. App.1978). The definition of an abuse of discretion encompasses myriads of cases and law reviews, but has been explained as: “The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action.” Rather, a trial court abuses its discretion if its decision is “arbitrary, unreasonable, and without reference to [any] guiding [rules and] principles” or is “‘so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.”’ (footnotes omitted). W. Wendell Hall, Hall’s Standard of Review in Texas, 42 St. Mary’s L.J. 3, 16 (2010). In Garner’s Dictionary of Legal Usage, it is defined as: the phrase denoting a lenient standard of reviewing a lower court’s judgment, signifies “no single level of deference or scrutiny.” The “variability of the phrase is not hopeless. It just means that generalizations about the standard may not be helpful. Abuse in this context is not pejorative; the word here is wholly unrelated to the meaning of the term when used in common parlance.” -10- Bryan A. Garner, Garner’s Dictionary of Legal Usage 10 (Oxford Univ. Press, 3d Ed. 2011)(1987). The trial court’s refusal to even consider the withdrawal based upon an unrecorded plea colloquy that occurred months earlier was unreasonable. The court’s explanation that “I will note that I would not have taken his plea, Mr. Peraza's plea, if I had not believed at the time he was entering it freely and voluntarily” is stout, but unreasonable. (2 R.R. at 9). The court failed to consider Mr. Peraza’s assertion of innocence. The court failed to consider any reason for the withdrawal, merely relying upon a belief that the court never takes an involuntary plea. That reasoning is “without reference to [any] guiding [rules and] principles.” The record is silent as to the plea colloquy. The passing of a case for a PSI report is considered “[taking] the case under advisement.” Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. [Panel Op.] 1979). A judge is free to make any finding based on the evidence regardless of the plea; withdrawal of a guilty plea is not required even when evidence in a PSI raises an issue of a defendant's innocence. Fisher v. State, 104 S.W.3d 923, 924 (Tex. App.-Houston [14th Dist.] 2003, no pet.). Typically, proper admonishments by a trial court establish prima facie proof that a guilty plea was entered knowingly and -11- voluntarily. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App.1998); Houston v. State, 201 S.W.3d 212, 217 (Tex. App.-Houston [14th Dist.] 2006, no pet.). In the case sub judice, the plea was not taken by a court reporter. There is no evidence to support the plea colloquy was correct. What is present in the record is an attorney requesting that her client be able to withdraw his plea. The attorney made an appropriate argument that Mr. Peraza felt coerced into pleading guilty. The PSI (despite the State’s assertions of a confession) establish that Mr. Peraza repeatedly denied the offense. In this case, the burden has shifted to Mr. Peraza to show he pleaded guilty without understanding the consequences of his plea and, consequently, suffered harm. Houston, 201 S.W.3d at 217. The PSI hearing supports the proposition that Mr. Peraza wished to withdraw his plea. And the voluntariness of a defendant’s plea should never be so summarily dismissed with the statement by the court that the plea would not have been taken had it not been “freely and voluntarily” entered. (2 R.R. at 9). -12- PRAYER FOR RELIEF For the reasons states above, Mr. Peraza prays that this Court grant his petition. Respectfully submitted, Jani Maselli Wood _______________________________ JANI J. MASELLI WOOD Assistant Public Defender Harris County, Texas Jani.Maselli@pdo.hctx.net TBN. 00791195 1201 Franklin Street, 13th Floor Houston, Texas 77002 Phone: (713) 368-0016 Fax: (713) 368-9278 Attorney for Appellant Osmin Peraza -13- CERTIFICATE OF SERVICE Pursuant to Tex. R. App. Proc. 9.5, this certifies that on January 26, 2015, a copy of the foregoing was emailed to Lisa McMinn, State Prosecuting Attorney, and the Harris County District Attorney’s Office through texfile.com at the following address: Jessica Akins Assistant District Attorney 1201 Franklin Street, 6th Floor Houston, TX 77002 akins_jessica@dao.hctx.net Lisa McMinn Lisa.McMinn@SPA.texas.gov Jani Maselli Wood _________________________________ JANI J. MASELLI WOOD -14- CERTIFICATE OF COMPLIANCE Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this petition complies with the type-volume limitations of TEX. R. APP. PROC. 9.4(I)(2)(D). 1. Exclusive of the portions exempted by TEX. R. APP. PROC. 9.4 (I)(1), this petition contains 3393 words printed in a proportionally spaced typeface. 2. This petition is printed in a proportionally spaced, serif typeface using Garamond 14 point font in text and Garamond 14 point font in footnotes produced by Corel WordPerfect software. 3. Undersigned counsel understands that a material misrepresentation in completing this certificate, or circumvention of the type-volume limits in Tex. R. App. Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against the person who signed it. Jani Maselli Wood ____________________________ JANI J. MASELLI WOOD -15- Appendix A Opinion Peraza v. State Peraza v. State, --- S.W.3d ---- (2014) and unsupported “Sheriff's Fee” and an unconstitutional 2014 WL 7476214 “DNA Record Fee,” the trial court erred in not permitting him Only the Westlaw citation is currently available. to withdraw his guilty pleas, and it erred in denying him a hearing on his motions for new trial and in arrest of judgment. NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. We modify the trial court's judgments and affirm as modified. OPINION Court of Appeals of Texas, Background Houston (1st Dist. A Harris County Grand Jury issued a true bill of indictment, accusing appellant of committing two separate offenses of Osmin Peraza, Appellant aggravated sexual assault of a child less than fourteen years v. of age. After his arrest, appellant failed a polygraph test and The State of Texas, Appellee then admitted to a police officer that he had committed the NO. 01–12–00690–CR, NO. 01–12–00691–CR | offenses. He subsequently pleaded guilty to committing the Opinion issued December 30, 2014 offenses. In his plea papers, appellant admitted that he had intentionally and knowingly caused both the mouth of the complainant, a person younger than fourteen years of age, to On Appeal from the 184th District Court, Harris County, contact his sexual organ and the sexual organ of the Texas, Trial Court Case Nos. 1305438 and 1305439 complainant to contact his sexual organ. In each case, appellant also signed written admonishments, representing Attorneys and Law Firms that he was mentally competent, understood the nature of the charge against him and the consequence of his plea, and Jani Maselli, Assistant Public Defender, Houston, TX, for freely and voluntarily pleaded guilty to the offense. appellant. Appellant's attorney signed the plea papers, affirming that she believed that appellant had executed his pleas knowingly, Devon Anderson, District Attorney, Jessica Akins, Assistant voluntarily, and after a full discussion of the consequences of District Attorney, Houston, TX, for State. his pleas. The trial court found sufficient evidence of Panel consists of Justices Jennings, Sharp, and Brown. appellant's guilt in both cases and that appellant had entered his guilty pleas freely, knowingly, and voluntarily. And it admonished appellant of his legal rights, accepted his guilty OPINION pleas, and ordered a presentence investigation in each case. At the sentencing hearing, appellant moved to withdraw his Terry Jennings, Justice guilty pleas, arguing that they had been coerced. After finding that appellant had pleaded guilty freely and voluntarily, the *1 Appellant, Osmin Peraza, without an agreed punishment trial court denied his motion. recommendation from the State, pleaded guilty to two separate offenses of aggravated sexual assault of a child less In its judgment of conviction in each case, the trial court than fourteen years of age.1 The trial court assessed his ordered appellant to pay $634 in court costs, including, as punishment at confinement for twenty-five years for each part of the “Sheriff's Fee,” a $50 charge for “serving capias”2 offense, with the sentences to run concurrently. In four issues, and a $5 charge for an arrest without a warrant or capias.3 The appellant contends that each judgment contains an erroneous trial court also included within the $634 of court costs a $250 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 17 -17- Peraza v. State, --- S.W.3d ---- (2014) “DNA Record Fee.”4 Appellant then filed his motions for new presumption that a defendant voluntarily and knowingly trial and in arrest of judgment, which the trial court denied pleaded guilty arises when the trial court finds that the without a hearing. defendant was properly admonished. See Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App.1998); see also Withdrawal of Guilty Pleas Tex.Code Crim. Proc. Ann. art. 26.13(b) (Vernon Supp.2014) (guilty pleas may not be accepted unless mentally competent *2 In his first issue, appellant argues that the trial court erred defendant enters plea freely and voluntarily). When the record in denying his motion to withdraw his guilty pleas because he presents a prima facie showing that the plea was entered did not enter the pleas voluntarily. voluntarily and knowingly, “the burden shifts to the defendant to show that he entered the plea without understanding the A defendant may withdraw his guilty plea at any time before consequences.” Arreola v. State, 207 S.W.3d 387, 391 judgment is pronounced or the trial court takes the plea under (Tex.App.–Houston [1st Dist.] 2006, no pet.). advisement. Jackson v. State, 590 S.W.2d 514, 515 (Tex.Crim.App.1979); State v. Ellis, 976 S.W.2d 789, 792 Here, the absence of a recorded plea colloquy, alone, does not (Tex.App.–Houston [1st Dist.] 1998, no pet.). Once a plea has overcome the presumption that appellant was properly been taken under advisement or guilt has been adjudicated, admonished and understood the consequences and nature of however, a request to withdraw the plea is untimely, and the his pleas. See Dusenberry v. State, 915 S.W.2d 947, 949–52 withdrawal of the plea is within the sound discretion of the (Tex.App.–Houston [1st Dist.] 1996, pet. ref'd) (concluding trial court. Jackson, 590 S.W.2d at 515; Ellis, 976 S.W.2d at guilty plea voluntary because defendant received written 792. After the trial court has admonished the defendant and admonishments of legal rights). Although the plea colloquy received the plea and evidence, the passage of the case for a was not recorded, appellant received written admonishments presentence investigation constitutes taking the case under of his legal rights, affirmed that he was mentally competent advisement. See Jackson, 590 S.W.2d at 514–15; Wissinger and understood the nature of the charges against him and the v. State, 702 S.W.2d 261, 262–63 (Tex.App.–Houston [1st consequences of his pleas, and agreed that he freely and Dist.] 1985, pet. ref d). Because appellant did not request that voluntarily pleaded guilty in each case. Further, the plea his guilty pleas be withdrawn until after the trial court had papers show that appellant's trial counsel and the trial court taken his cases under advisement, we review the trial court's both verified that appellant entered his guilty pleas freely, denial of his motion to withdraw his pleas for an abuse of knowingly, and voluntarily, after having fully discussed his discretion. pleas and their consequences with counsel. On this record, there is no evidence that appellant was not properly A trial court abuses its discretion when it acts arbitrarily, admonished or failed to understand the consequence or nature unreasonably, or without reference to any guiding rules or of his pleas. principles. Lyles v. State, 850 S.W.2d 497, 502 (Tex.Crim.App.1993); Montgomery v. State, 810 S.W.2d *3 In regard to appellant's assertion that his guilty pleas were 372, 380 (Tex.Crim.App.1990). To show that the trial court coerced, we note that “a plea is involuntary when it is abused its discretion when it refused to allow appellant to ‘induced by threats, misrepresentations, or improper promises' withdraw his guilty pleas, he must show that “the trial court's ” by the prosecutor, judge, or law enforcement officials. Rios rulings lie outside the zone of reasonable disagreement.” v. State, 377 S.W.3d 131, 136 (Tex.App.–Houston [1st Dist.] Jagaroo v. State, 180 S.W.3d 793, 802 (Tex.App.–Houston 2012, pet. ref'd) (quoting Kniatt v. State, 206 S.W.3d 657, [14th Dist.] 2005, pet. ref'd). 664 (Tex.Crim.App.2006)). Moreover, we presume the regularity of the judgments and proceedings, and appellant Appellant first argues that there is no evidence that he has the burden of overcoming this presumption. Dusenberry, voluntarily entered his pleas because there is no record of the 915 S.W.2d at 949. trial court's oral discussion with him of his legal rights. We consider the entire record in determining whether a plea was Appellant presented no evidence that his guilty pleas were entered voluntarily. Fimberg v. State, 922 S.W.2d 205, 207 actually coerced. At his sentencing hearing, appellant's trial (Tex.App.–Houston [1st Dist.] 1996, pet. ref'd). A prima facie counsel suggested that appellant was coerced into pleading © 2015 Thomson Reuters. No claim to original U.S. Government Works. 18 -18- Peraza v. State, --- S.W.3d ---- (2014) guilty because the jury was “on the way” and appellant had court. Tex. Code Crim. Proc. Ann. art. 103.006 (Vernon failed a polygraph test immediately before admitting to a 2006). police officer that he had committed the sexual-assault offenses. The record, however, contains no evidence that Court costs do not constitute part of the guilt or sentence of a anyone coerced appellant into pleading guilty. Appellant criminal defendant—“they are ‘a nonpunitive recoupment of voluntarily submitted to a polygraph test, and neither his the costs of judicial resources expended in connection with failure of the polygraph test, nor the immediacy of a jury trial, the trial of a case.’ ” Johnson v. State, 423 S.W.3d 385, 390 constituted a threat, misrepresentation, or improper promise. (Tex.Crim.App.2014) (quoting Armstrong v. State, 340 Thus, appellant has not overcome the presumption that he S.W.3d 759, 767 (Tex.Crim.App.2011)). Therefore, we knowingly and voluntarily entered his pleas. review the assessment of court costs to determine whether there is a basis for the cost; we do not undertake an When appellant requested to withdraw his guilty pleas, the evidentiary-sufficiency review. Id. trial court had taken his cases under advisement and reset them for a punishment hearing. Because the trial court had already admonished appellant of his legal rights and he had *4 Here, the trial court clerk's bills of costs each include a already voluntarily pleaded guilty, his request to withdraw his $50 charge for “serving capias” as part of the “Sheriff's Fee” pleas was untimely, and the trial court had discretion to accept assessed against appellant. See Tex. Code Crim. Proc. Ann. or deny his motion. See Jackson, 590 S.W.2d at 515. art. 102.011(a)(2) (Vernon Supp.2014) (“A defendant convicted of a felony or a misdemeanor shall pay ... $50 for Accordingly, we hold that the trial court did not err in executing or processing an issued arrest warrant, capias, or denying appellant's motion to withdraw his guilty pleas. capias pro fine....”). They also include a $5 charge for an arrest without a warrant/capias. See id. art. 102.011(a)(1) We overrule appellant's first issue. (authorizing $5 charge for arrest without warrant). The State agrees that the records do not support the $50 charge for “serving capias.” And the records contain no basis to conclude that capiases were issued for appellant's arrest. Court Costs for Arrest The proper remedy for such an unsupported fee is for the In his second issue, appellant argues that the trial court's appellate court to modify the judgment, not to grant a new judgments are invalid because they each contain an erroneous trial as appellant has requested. See Tex. R. App. P. 43.2(b); and unsupported “Sheriff's Fee.” Appellant asserts that, “[a]t French v. State, 830 S.W.2d 607, 609 (Tex.Crim.App.1992) the very least, the $50.00 Sheriff's Fee [for serving a capias] (agreeing “appellate court has authority to reform a [trial should be removed” from the $634 in court costs assessed court] judgment to ... make the record speak the truth when against him in each judgment. the matter has been called to its attention by any source”); see also Nolan v. State, 39 S.W.3d 697, 698 (Tex.App.–Houston A criminal defendant must pay certain statutorily mandated [1st Dist.] 2001, no pet.) (“An appellate court has the power costs and fees, which vary depending on the type of offense, to correct and reform a trial court judgment ‘to make the the underlying facts, and the procedural history of the case. record speak the truth when it has the necessary data and See Tex. Gov't Code Ann. § 102.021 (Vernon Supp.2014) information to do so ....’ ” (quoting Asberry v. State, 813 (listing court costs upon conviction); Tex. Loc. Gov't Code S.W.2d 526, 529 (Tex.App.–Dallas 1991, pet. ref'd))). Ann.. § 133.102 (Vernon Supp.2014) (same). The district court clerk must keep a record of each fee or cost charged for Because there is no basis in the record to support the $50 a service rendered in a criminal action or proceeding. Tex. charge for “serving capias” assessed against appellant as part Code Crim. Proc. Ann. art. 103.009(a)(1) (Vernon 2006). If of the “Sheriff's Fee” in both of appellant's cases, we modify a criminal action is appealed, an officer of the court must each judgment to delete the $50 charge from the court costs. certify and sign a bill of costs and send it to the appellate We sustain appellant's second issue. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 19 -19- Peraza v. State, --- S.W.3d ---- (2014) 102.020(a)(1). Thirty-five percent of the revenue received Constitutionality of “DNA Record Fee” from this “DNA Record Fee” is dedicated to the state highway fund, while sixty-five percent of the revenue is In his third issue, appellant argues that the trial court's dedicated to the general revenue fund of the criminal justice judgments are invalid because they each assess an planning account. Id. art. 102.020(h). unconstitutional $250 “DNA Record Fee.” See Tex. Code Crim. Proc. Ann. art. 102.020(a)(1) (Vernon Supp.2014) Appellant argues that the “DNA Record Fee” is an (authorizing collection of $250 from persons convicted of impressible tax collected by the judiciary, rather than a offenses listed in Texas Government Code section legitimate court cost, because revenue from this fee is 411.1471(a)(1)). Appellant asserts that the fee required by dedicated to the state highway fund and criminal justice article 102.020 is facially unconstitutional under the planning account and, thus, used for services that are neither separation of powers clause of the Texas Constitution. See necessary nor incidental to the trial of a criminal case. In Tex. Const. art. II, § 1. support of his argument, appellant principally relies on Ex Parte Carson, 143 Tex.Crim. 498, 159 S.W.2d 126 (1942). Whether a statute is facially constitutional is a question of law that we review de novo. Ex Parte Lo, 424 S.W.3d 10, 14 In Carson, the Texas Court of Criminal Appeals considered (Tex.Crim.App.2013); Ma loney v. State, 294 S.W.3d 613, whether it was constitutionally permissible to impose a $1 fee 626 (Tex.App.–Houston [1st Dist.] 2009, pet. ref'd). When as a court cost in all cases filed in counties with more than reviewing a constitutional challenge, we “presume that the eight district courts or more than three county courts at law. statute is valid and that the legislature was neither 159 S.W.2d at 127. The revenue collected from the $1 fee unreasonable nor arbitrary in enacting it.” Curry v. State, 186 was directed to the “County Law Library Fund” and S.W.3d 39, 42 (Tex.App.–Houston [1st Dist.] 2005, no pet.); “available to be used for certain costs and expenses in see also State v. Rosseau, 396 S.W.3d 550, 557 acquiring, maintaining and operating a law library available (Tex.Crim.App.2013). If the statute can be construed in two to the judges of the courts and to the attorneys of litigants.” different ways, one of which sustains its validity, we apply the Id. The court held that the fee constituted an unconstitutional interpretation that sustains its validity. Maloney, 294 S.W.3d tax, not a legitimate court cost, because it was “neither at 625. necessary nor incidental to the trial of a criminal case.” Id. at 127, 130. The court cautioned that to hold otherwise, The party challenging the statute bears the burden of establishing the statute's unconstitutionality. Rosseau, 396 would lead into fields of expenditures which S.W.3d at 557; Curry, 186 S.W.3d at 42. “A facial challenge may as well include the cost of the court to a statute is the most difficult challenge to mount houses, the automobiles which officers use to successfully because the challenger must establish that no set apprehend criminals and even the roads upon of circumstances exists under which the statute will be which they ride. If something so remote as a valid.”Santikos v. State, 836 S.W.2d 631, 633 law library may be properly charged to the (Tex.Crim.App.1992); see also Rosseau, 396 S.W.3d at 557. litigant on the theory that it better prepares the We “must uphold the challenged statute if it can be courts and the attorneys for the performance of reasonably construed in a manner consistent with the their duties, it occurs to us that we might as legislative intent and is not repugnant to the Constitution.” logically tax an item of cost for the education Curry, 186 S.W.3d at 42. of such attorneys and judges and even the endowments of the schools which they attend. *5 Article 102.020(a)(1), titled “Costs Related to DNA Id. at 127. Testing,” provides that a defendant convicted of certain offenses, including aggravated sexual assault of a child less than fourteen years of age, “shall pay as a cost of court: $250 Appellant, likening the “DNA Record Fee” to the [upon] conviction....” Tex. Code Crim. Proc. Ann. art. law library fee in Carson, first asserts that the © 2015 Thomson Reuters. No claim to original U.S. Government Works. 20 -20- Peraza v. State, --- S.W.3d ---- (2014) portion of the “DNA Record Fee” dedicated to the T. Hasler, Dangerous Distractions: The Problematic state highway fund “is used ... [to] provide services Use of Wireless Communication Devices While that are neither necessary nor incidental to the trial Driving, 12 Tex. Tech. Admin. L.J. 155, 168 (2010) of a criminal case.” (“TxDOT's purpose is to facilitate effective movement throughout the state by providing safe, By law, “[m]oney that is required to be used for efficient transportation systems.”); Kyle R. Baum, public roadways by the Texas Constitution or federal Comment, Rollin' on Down the Rail: Can Texas law and that is deposited in the state treasury to the Lead the Nation in Developing Efficient High–Speed credit of the state highway fund, ... may be used Rail this Time Around?, 45 Tex. Tech. L.Rev. only: (1) to improve the state highway system; (2) to Online 1, 2 (2013) (TxDOT's “core mission is to mitigate adverse environmental effects that result ‘provide safe and efficient movement of people and directly from construction or maintenance of a state goods, enhance economic viability and improve the highway by the department; or (3) by the quality of life for people that travel in the state of Department of Public Safety to police the state Texas by maintaining existing roadways and highway system and to administer state laws relating collaborating with private and local entities to plan, to traffic and safety on public roads.” Tex. Transp. design, build and maintain expanded transportation Code Ann. § 222.001(a) (Vernon 2011) (emphasis infrastructure’ ”). added). Section 222.002 supplements this instruction and provides that “[m]oney in the state highway fund TxDOT is divided into twenty-two divisions, ranging that is not required to be spent for public roadways from aviation to maritime to public transportation by the Texas Constitution or federal law may be and rail, which are tasked with handling the used for any function performed by the department.” responsibilities of the department. See Tex. Transp. Id. § 222.002 (Vernon 2011) (emphasis added). Code Ann. § 201.202(a) (Vernon Supp.2014) (“The “[T]he department” referenced in section 222.002 is commission shall organize the department into the Texas Department of Transportation divisions to accomplish the department's functions ... (“TxDOT”). Id. § 201.001(a)(2) (Vernon including divisions for: (1) aviation; (2) highways Supp.2014); see also State v. Montgomery Cnty., and roads; and (3) public transportation.”); Inside 338 S.W.3d 49, 56 (Tex.App.–Beaumont 2011, pet. TxDOT: Divisions, Tex. Dep't Transp., http:// denied) (noting “ ‘[d]epartment’ means the www.txdot.gov/inside-txdot/division.html (last Department of Transportation”). visited Dec. 16, 2014) (“From rail crossings to right of way, traffic cameras to travel maps, and bridge *6 Here, the “DNA Record Fee” revenue dedicated inspections to bid opportunities, TxDOT's divisions to the state highway fund does not constitute money handle a diverse range of services for the agency.”). that is required, by either the Texas Constitution or federal law, to be used for public roadways. See Tex. TxDOT is responsible for developing a statewide Code Crim. Proc. Ann. art. 102.020(a)(1); Tex. transportation plan for addressing all modes of Transp. Code Ann. § 222.001(a). Therefore, transportation, including highways and turnpikes, pursuant to section 222.002, such money may be aviation, mass transportation, railroads, high-speed used for any function of TxDOT. See Tex. Transp. railroads, and water traffic. See Tex. Transp. Code Code Ann. §§ 201,001, 222.002. Ann. § 201.601(a) (Vernon Supp.2014); Robbins v. Limestone Cnty., 114 Tex. 345, 268 S.W. 915, 920 The stated mission of TxDOT is to “[w]ork with (1925) (agency created to “formulate and execute others to provide safe and reliable transportation plans and policies for the location, construction and solutions for Texas.”5 Inside TxDOT: Mission, Goals maintenance of a comprehensive system of state and Values, Tex. Dep't Transp., highways and public roads”); see also Tex. Transp. http://www.txdot.gov/inside-txdot/contact-us/missi Code Ann. §§ 201.6011–622 (Vernon 2011 & on.html (last visited Dec. 16, 2014); see also Glenn Supp.2014) (listing plans and projects of TxDOT); © 2015 Thomson Reuters. No claim to original U.S. Government Works. 21 -21- Peraza v. State, --- S.W.3d ---- (2014) Brian K. Carroll, The Road Goes on Forever and the shall be deposited in the state treasury to the credit Claims Process Never Ends: An Approach for of the state highway fund, and money deposited to Success in Handling Texas Department of the state highway fund under this section and under Transportation Construction Claims, 13 Tex. Tech. Articles 42.12 and 102.020(h), Code of Criminal Admin. L.J. 233, 234 (2012) (“The projects range Procedure, may be used only to defray the cost of from small landscaping and guardrail projects to administering [chapter 411, subchapter G] and major interchanges.... TxDOT also supervises the Section 411.0205.” Tex. Gov't Code Ann. § construction of buildings for rest areas, area 411.145(c) (Vernon 2012); see also id. § 411.0205 engineer's offices, district offices, visitor's centers, (Vernon Supp.2014) (crime laboratory accreditation and other special purpose buildings....”). process). Because “[s]ubchapter G governs the collection and management of DNA samples, including [a]ppellant's, by [the Texas Department of *7 The court in Carson, which constitutes binding Public Safety (“DPS”) ]” and “[s]ection 411.0205 precedent on this Court,6 held that fees which are regulates the accreditation of forensic crime “neither necessary nor incidental to the trial of a laboratories by DPS,” our dissenting colleague criminal case” are not legitimate courts costs that concludes that “the portion of the DNA Record Fee may be assessed against a defendant. 159 S.W.2d at credited to the state highway fund is used to defray 127, 130. As discussed above, the responsibilities of the costs associated with collecting, storing, and TxDOT, which under the Code of Criminal testing DNA samples” and, thus, “paying for DNA Procedure is entitled to use thirty-five percent of the sampling and crime-lab accreditation is a valid, revenue collected by the “DNA Record Fee,” do not constitutional use of the DNA Record Fee under relate to the trial of a criminal case. Instead, the Carson.” responsibilities of TxDOT are far more remote from a criminal trial than the county law libraries which were to be used by the judges and attorneys for trial In reaching his conclusion, however, our dissenting preparation in Carson. Thus, it cannot be reasonably colleague fails to consider the entire breadth of concluded that the portion of the revenue collected subchapter G. For instance, the “DNA Database” through the “DNA Record Fee” and dedicated to the provided for in chapter 411, subchapter G is used for state highway fund constitutes a proper court cost to a wide variety of purposes, including “assisting in be assessed against appellant or any other criminal the recovery or identification of human remains from defendant. a disaster or for humanitarian purposes,” “assisting in the identification of living or deceased missing Accordingly, we hold that the portions of articles persons,” “establishing a population statistics 102.020(a)(1) and 102.020(h) requiring the database,” “assisting in identification research, collection of the “DNA Record Fee” from appellant forensic validation studies, or forensic protocol to be dedicated the state highway fund constitute an development,” and “retesting to validate or update unconstitutional tax. See Carson, 159 S.W.2d at 127, the original analysis or assisting in database or DNA 130. But see O'Bannon v. State, 435 S.W.3d 378, laboratory quality control.” Id. § 411.143(c) (Vernon 380–82 (Tex.App.–Houston [14th Dist.] 2014, no 2012). And the database contains DNA records from pet.). a whole host of individuals, such as “an unidentified missing person or unidentified skeletal remains or We note that our dissenting colleague would not body parts,” “a close biological relative of a person hold that the portion of the “DNA Record Fee” who has been reported missing,” and “a person at revenue dedicated to the state highway fund is an risk of becoming lost, such as a child or a person unconstitutional tax. In doing so, he relies on Texas declared ... mentally incapacitated.” Id. § 411.142(g) Government Code section 411.145(c), which (Vernon 2012). Notably, none of the above statutory provides that “[a] fee collected under this section purposes or the individual records in the DNA © 2015 Thomson Reuters. No claim to original U.S. Government Works. 22 -22- Peraza v. State, --- S.W.3d ---- (2014) Database relate to appellant's criminal trial, despite used by the CJD for services that are necessary or the fact that thirty-five percent of the revenue incidental to the trial of a criminal case. collected via the “DNA Record Fee” may be utilized by DPS to “defray the cost of administering” chapter The Texas Government Code reveals that the CJD 411, subchapter G.7 See id. § 411.145(c). was established to: *8 The Texas Court of Criminal Appeals has clearly (1) advise and assist the governor in developing favored a strict definition of what constitutes a policies, plans, programs, and proposed legitimate court cost that may be assessed against a legislation for improving the coordination, criminal defendant. See Carson, 159 S.W.2d at 127; administration, and effectiveness of the criminal see also Salinas v. State, 426 S.W.3d 318, 329–30 justice system; (Tex.App.–Houston [14th Dist.] 2014, no pet.) (Jamison, J., dissenting) (explaining Carson (2) administer the criminal justice planning fund; constitutes binding precedent and “the Carson Court clearly favored a strict definition of permissible (3) prepare a state comprehensive criminal justice ‘court costs' in a criminal case”). And the revenue plan, to update the plan annually based on an collected via the “DNA Record Fee” to be used by analysis of the state's criminal justice problems DPS for anything covered by chapter 411, and needs, and to encourage identical or subchapter G, or for crime laboratory accreditation substantially similar local and regional under Government Code section 411.0205, is not comprehensive criminal justice planning efforts; closely enough related to appellant's criminal trial to be considered constitutional. (4) establish goals, priorities, and standards for programs and projects to improve the Appellant, again relying on Carson, next asserts that administration of justice and the efficiency of law the portion of the “DNA Record Fee” dedicated to enforcement, the judicial system, prosecution, the general revenue fund of the criminal justice criminal defense, and adult and juvenile planning account also constitutes an unconstitutional corrections and rehabilitation; tax. (5) award grants to state agencies, units of local government, school districts, and private, The criminal justice planning account is nonprofit corporations from the criminal justice administered by the Criminal Justice Division planning fund for programs and projects on (“CJD”) of the Governor's Office. See Tex. Gov't consideration of the goals, priorities, and Code Ann. § 772.006(a)(2) (Vernon 2012). standards recommended by the Criminal Justice Appellant asserts that the CJD's “mission is to create Policy Council; and support programs that protect people from crime, reduce the number of crimes committed, and to promote accountability, efficiency, and (6) apply for, obtain, and allocate for the purposes effectiveness within the criminal justice system.” He of this section any federal or other funds which notes that it “focuses on the enhancement of may be made available for programs and projects Texas'[s] capacity to prevent crime, provide service that address the goals, priorities, and standards and treatment options, enforce laws, train staff and established in local and regional comprehensive volunteers, and the restoration of crime victims to criminal justice planning efforts or assist those full physical, emotional and mental health.” efforts; Appellant argues that because “the courts [are] never mentioned” as part of the CJD's mission or focus, the (7) administer the funds provided by this section revenue collected via the “DNA Record Fee” is not in such a manner as to ensure that grants received © 2015 Thomson Reuters. No claim to original U.S. Government Works. 23 -23- Peraza v. State, --- S.W.3d ---- (2014) under this section do not supplant state or local Administered by the Office of the Governor, Office funds; o f G o v e r n o r , http://governor.state.tx.us/financial-services/grants/ (8) monitor and evaluate programs and projects (last visited Dec. 16, 2014) (grants from criminal funded under this section, cooperate with and justice planning fund “support a wide range of render technical assistance to state agencies and projects designed to reduce crime and improve the local governments seeking to reduce crime or criminal [and] juvenile justice systems”); Helpful enhance the performance and operation of the Questions and Answers for Managing Grants, criminal justice system, and collect from any state Office of Governor, Criminal Justice Div., B–12 or local government entity information, data, ( F e b . 2 0 1 4 ) , h t t p : / / g o v e r n o r . st a t e . t x . u s / statistics, or other material necessary to carry out files/cjd/CJD_Guide_to_Grants_v7.pdf (same). the purposes of this section; *9 (9) submit a biennial report to the legislature Numerous entities are eligible to apply for grants reporting the division's activities during the from the criminal justice planning fund, including preceding biennium including the comprehensive “[s]tate agencies, units of local government, state criminal justice plans and other studies, independent school districts, nonprofit corporations, evaluations, crime data analyses, reports, or Native American tribes, COGs, universities, proposed legislation that the governor determines colleges, hospital districts, juvenile boards, regional appropriate or the legislature requests; and education service centers, community supervision and corrections departments, crime control and (10) perform other duties as necessary to carry out prevention districts, and faith-based organizations.” the duties listed in this subsection and adopt rules CJD Funding Sources, supra, at 1; see also Tex. and procedures as necessary. Gov't Code Ann. § 772.006(a)(5) (CJD awards grants from criminal justice planning fund “to state agencies, units of local government, school districts, Id. and private, nonprofit corporations”); Press Release, Office of Governor, Gov. Perry Awards $195,000 From State Criminal Justice Planning Funds (Jan. In regard to the CJD's administration of the criminal 2 8 , 2 0 0 8 ) , h t t p : / / justice planning account, the legislature determines governor.state.tx.us/news/press-release/5133/ (grant and appropriates the necessary amount of money recipients from criminal justice planning fund from the criminal justice planning fund to the CJD. “include local units of government, independent Tex.Code Crim. Proc. Ann. art. 102.056(a) (Vernon school districts, non-profit corporations, hospitals, Supp.2014). The CJD then uses this money to universities, colleges, community supervision and “[s]upport a wide range of projects designed to corrections departments, law enforcement agencies reduce crime and improve the criminal and juvenile and councils of governments”). justice systems.”8 CJD Funding Sources, Office of Go ver nor , C r i mi n al J ustice Div., 1 , *10 Moreover, the CJD has awarded money from the http://governor.state.tx.us/ fund to a variety of recipients, such as the Alamo files/cjd/CJD_Funding_Sources.pdf (last visited Area Council of Governments for Regional Police Dec. 16, 2014); see also Tex. Code Crim. Proc. Ann. Training Academy, the Bastrop County Women's art. 102.056(a) (money from criminal justice Shelter for SAINT: Sexual Assault Integrated planning fund used by CJD “for state and local Nursing Team, Fort Bend County for the “Saved by criminal justice projects,” with not less than twenty the Bell” Delinquency Reduction Program, the Katy percent of such money going to juvenile justice Christian Ministries for Counseling Services for programs); Financial Services: Grants over $25,000 Victims of Domestic Violence, and The Family © 2015 Thomson Reuters. No claim to original U.S. Government Works. 24 -24- Peraza v. State, --- S.W.3d ---- (2014) Place for S.T.A.R.T. (Students Tackling Abusive criminal and juvenile justice systems.” See CJD Relationships Together). See, e.g., Press Release, Funding Sources, supra, at 1. The recipients of Office of Governor Tex., Gov. Perry Awards $8 money from the criminal justice planning fund are Million in Grants to Improve Criminal Justice vastly diverse and range from state agencies to Systems (Sept. 10, 2008), http:// schools to hospitals and faith-based organizations. governor.state.tx.us/news/press-release/11114/ Notably, the money from the criminal justice (listing seventy-nine recipients that received more planning fund is not required to be directed to the than $8 million in grants from criminal justice courts or to services necessarily or incidentally planning fund); Press Release, Office of the related to criminal trials. And often times such Governor of Tex., Gov. Perry Awards $195,000 revenue is given to programs that, as the court in From State Criminal Justice Planning Fund, supra Carson specifically noted, could not possibly relate (stating more than $195,000 in grants from criminal to legitimate court costs. See 159 S.W.2d at 127 justice planning fund awarded to Wood County for (costs for training and education not legitimate court Wood County Rural Prosecutor Project and costs that may be assessed against criminal BeyondMissing Inc. for Texas Amber Alert defendants). Accordingly, we cannot conclude that Network); Press Release, Office of Governor, the criminal justice planning account, which is Governor Rick Perry Announces Statewide Grant to funded by the “DNA Record Fee,” passes Reduce School Dropouts (Nov. 7, 2001), http:// constitutional muster. See Salinas, 426 S.W.3d at governor.state.tx.us/ news/press-release/4229/ 330–31 (Jamison, J., dissenting) (concluding court (announcing $168,146 criminal justice planning fund costs assessed pursuant to Texas Local Government grant to Behavioral Health Institute of Waco to assist Code section 133.102, which directs approximately with “efforts to reduce school failure, dropout rates, thirteen percent of its revenue to the criminal justice and juvenile crime”); see also Helpful Questions and planning fund, unconstitutional). Answers for Managing Grants, supra, at B–12 (listing activities eligible for grants from criminal justice planning fund, such as job training, The State argues that appellant has not shown that professional therapy and counseling, school based the “DNA Record Fee” is unconstitutional because delinquency prevention, substance abuse, and peer it “is a one-time fee of $250” and “is certainly support groups). applicable to appellant, as he was court-ordered to provide a DNA specimen in both sexual assault With this background in mind, we turn to the cases.” The State asserts that the “DNA Record Fee” propriety of the portion of the revenue collected via was ordered “to reimburse the State for expenses the “DNA Record Fee” dedicated to the criminal incurred as a result of the felony prosecution [of justice planning account and to be used by the CJD. appellant], specifically costs spent to obtain DNA As the Texas Court of Criminal Appeals explained specimens in certain cases.” And “[s]ince this in Carson, adopting a less than strict definition of statutory assessment is reasonably related to the what constitutes a legitimate court cost “would lead costs of administering the criminal justice system, into fields of expenditures which may as well include appellant has failed to show how the statute the cost of the court houses, the automobiles which authorizing this court cost is unconstitutional.” officers use to apprehend criminals and even the roads upon which they ride.” 159 S.W.2d at 127. DPS is required to collect a DNA specimen from persons convicted of certain crimes, including Here, sixty-five percent of the revenue received aggravated sexual assault of a child less than through the “DNA Record Fee” is dedicated by law fourteen years of age, and maintain a database that to the general revenue fund of the criminal justice includes, among others, these DNA specimens. See planning account in order to “[s]upport a wide range Tex. Gov't Code Ann. § 411.142 (directing DPS to of projects designed to reduce crime and improve the maintain “computerized database that serves as the © 2015 Thomson Reuters. No claim to original U.S. Government Works. 25 -25- Peraza v. State, --- S.W.3d ---- (2014) central depository in the state for DNA records”); id. of none of which have any relation to the collection § 411.1471 (Vernon 2012) (requiring collection of of a defendant's DNA specimen or a criminal trial. DNA specimen from those convicted of certain See, e.g., Tex. Code Crim. Proc. Ann. art. crimes). As asserted by the State, funds from the 102.056(a) (money from criminal justice planning criminal justice planning account may be used by the fund is used for “state and local criminal justice CJD to reimburse DPS and other law enforcement projects,” with not less than twenty percent of such agencies for expenses incurred in performing duties funds directed to juvenile justice programs); Tex. required by Texas Government Code section Gov't Code Ann. § 772.006(a)(5) (CJD awards 411.1471, namely the taking of a DNA specimen grants from criminal justice planning fund “to state from a defendant, preserving of the specimen, and agencies, units of local government, school districts, maintaining a collection of the specimen. See and private, nonprofit corporations”); Press Release, Tex.Code Crim. Proc. Ann. art. 102.056(e); Tex. Office of Governor, Gov. Perry Awards $8 Million Gov't Code Ann. § 411.1471. in Grants to Improve Criminal Justice Systems, supra (listing seventy-nine recipients that received *11 Notably though, reimbursement for expenses more than $8 million in grants from criminal justice related to the collection and maintenance of DNA planning fund); Press Release, Office of Governor, specimens is not automatic or guaranteed under Gov. Perry Awards $195,000 from State Criminal Texas Code of Criminal Procedure article Justice Planning Funds, supra (stating more than 102.056(e); the statute only provides that DPS will $195,000 in grants from criminal justice planning be reimbursed with funds from the criminal justice fund awarded to Wood County for Wood County planning account after it complies with certain Rural Prosecutor Project and BeyondMissing Inc. procedures. See Tex. Code Crim. Proc. Ann. art. for Texas Amber Alert Network); Press Release, 102.056(e) (law enforcement agency, incurring Office of Governor, Governor Rick Perry expenses in previous calendar quarter, must, on first Announces Statewide Grant to Reduce School day after end of calendar quarter, send certified Dropouts, supra (announcing $168,146 criminal statement of costs incurred to CJD). Thus, although justice planning fund grant to Behavioral Health appellant provided a DNA specimen to DPS in Institute of Waco to assist with “efforts to reduce accordance with section 411.1471 in conjunction school failure, dropout rates, and juvenile crime”). with his cases, it cannot be assumed that DPS was Thus, it cannot be reasonably concluded that the automatically reimbursed by virtue of the “DNA revenue dedicated to the criminal justice planning Record Fee” for any expenses associated with the account provides services that are necessary or collection of his specimen. incidental 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 332 (Jamison, J., dissenting) Further, we note that even if we presume that some (“Although it appears some of the funds that go to of the revenue collected pursuant to the “DNA the fair defense account may ultimately help provide Record Fee” is actually used to reimburse DPS or counsel for indigent criminal defendants, it does not other law enforcement agencies for collecting DNA appear that this is the sole use that can be made for specimens from criminal defendants, preserving such these funds.... It therefore cannot be said that either specimens, and maintaining a record of such the training fund or the fair defense account are collections, it is readily apparent that this is not the necessary or incidental expenses in the trial of only way in which the revenue is used. Sixty-five appellant's criminal case.”). percent of the revenue collected through the “DNA Record Fee” is dedicated to the general revenue fund Accordingly, we hold that the portions of article of the criminal justice planning account. As outlined 102.020(a)(1) and article 102.020(h) requiring the above, money in the criminal justice planning fund collection of the “DNA Record Fee” from appellant is given to a vast number of diverse entities, almost to be dedicated to the general revenue fund of the © 2015 Thomson Reuters. No claim to original U.S. Government Works. 26 -26- Peraza v. State, --- S.W.3d ---- (2014) criminal justice planning account constitute an unconstitutional tax. See Carson, 159 S.W.2d at 127, 130. But see O'Bannon, 435 S.W.3d at 381. We sustain appellant's third issue.9 *12 We note that our sister court has recently Conclusion criticized the reasoning of the Texas Court of Criminal Appeals opinion in Carson as “ ‘both Having held that the “DNA Record Fee” assessed abbreviated and bereft of citations to supporting against appellant pursuant to article 102.020(a)(1) authority.’ ” O'Bannon, 435 S.W.3d at 381 (quoting and article 102.020(h) constitutes an unconstitutional Salinas, 426 S.W.3d at 326). In “[a]ssuming tax, we modify each judgment to delete the $250 arguendo that Carson requires a statute imposing charge from the assessed court costs. See Cates v. court costs to be ‘necessary or incidental to the trial State, 402 S.W.3d 250, 252 (Tex.Crim.App.2013) of a criminal case,’ ” the Fourteenth Court of (holding proper remedy when trial court erroneously Appeals held that the defendant's facial includes amounts as court costs is to modify constitutional challenge to article 102.020 failed judgment to delete erroneous amounts); Sturdivant because he did not “establish[ ] how the funds will v. State, 445 S.W.3d 435, 443 (Tex.App.–Houston be used once they are distributed to the state [1st Dist.] 2014, pet. ref d) (holding trial court highway fund and the criminal justice planning erroneously included attorney pro tern fees as court account.” Id. at 381–82. It asserted that the costs and modifying judgment accordingly); see also defendant merely “infer[ed]” that revenue collected Tex. R. App. P. 43.2(b). pursuant to article 102.020(a)(1) will “flow ‘directly to the executive branch [to be] used for policy purposes' ” or to the state highway fund, “not [to] be Further, as noted above, having held that there is no used for purposes necessary or incidental to DNA basis in the record to support the charge for “serving collection or testing.” Id. at 382. capias,” we also modify each judgment to delete the $50 charge from the assessed court costs. See We respectfully disagree with our sister court for the French, 830 S.W.2d at 609 (agreeing “appellate reasons outlined above. In short, we first note that court has authority to reform a [trial court] judgment the reasoning of the Texas Court of Criminal to ... make the record speak the truth when the matter Appeals in Carson is sound and it constitutes has been called to its attention by any source”); binding precedent upon it and lower courts. See Nolan, 39 S.W.3d at 698 (“An appellate court has Reed v. Buck, 370 S.W.2d 867, 870–71 (Tex.1963) the power to correct and reform a trial court (explaining simply because certain cases had “not judgment ‘to make the record speak the truth when been cited in recent years,” such “ancient cases” do it has the necessary data and information to do so not “just fade[ ] away”; instead, “unless there is ....’ ” (quoting Asberry, 813 S.W.2d at 529)); see some good reason for overruling them, they should also Tex. R. App. P. 43.2(b). 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 *13 We affirm the judgment of the trial court as state's highest criminal court.”). Second, we note that modified. criminal defendants similarly situated to appellant are not asking appellate courts to “infer” how the revenue from the “DNA Record Fee” will be Harvey Brown, Justice, Concurring and Dissenting directed. As discussed above, the revenue, by statute, is dedicated by law for expenditures that are far removed from actual “court costs.” A plain reading of the pertinent statutes reveals this undeniable fact. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 27 -27- Peraza v. State, --- S.W.3d ---- (2014) I join with the Court's conclusions that the trial court did not abuse its discretion in denying Appellant's To prevail, the party asserting a facial challenge motion to withdraw his guilty pleas and that the “must establish that the statute always operates judgment should be modified, striking the unconstitutionally in all possible circumstances.” unsupported “Sheriff's Fee” assessed in both cases. Rosseau, 396 S.W.3d at 557. When construing a However, I disagree with the Court's conclusion that statute, courts consider, among other factors, the the “DNA Record Fee”1 is unconstitutional. object sought to be attained by the legislation, laws on the same or similar subjects, and the consequences of a particular construction. Tex. Gov't Code Ann. § 311.023 (West 2013); see State v. Facial Challenge to the DNA Record Fee Neesley, 239 S.W.3d 780, 784 (Tex.Crim.App.2007); Nguyen v. State, 1 S.W.3d Appellant argues that the statute authorizing 694, 696–97 (Tex.Crim.App.1999); see also collection of the fee is facially unconstitutional Dowthitt v. State, 931 S.W.2d 244, 258 under the separation-of-powers clause of the Texas (Tex.Crim.App.1996). If a statute can be reasonably Constitution. Tex. Const. art. II, § 1. Under that interpreted in a manner that does not offend the provision, a statute authorizing a court to collect constitution, a reviewing court must overrule a facial costs “neither necessary nor incidental to the trial of challenge to the statute's constitutionality. Curry, a criminal case” is not valid.Ex parte Carson, 143 186 S.W.3d at 42. Tex.Crim. 498, 159 S.W.2d 126, 127 (1942). Appellant makes only a facial challenge, which requires him to “establish that no set of B. Constitutionality of the DNA Record Fee circumstances exists under which the statute will be benefiting the criminal-justice planning account valid.” Santikos v. State, 836 S.W.2d 631, 633 (Tex.Crim.App.1992); see also State v. Rosseau, *14 Appellant argues that the DNA Record Fee 396 S.W.3d 550, 557 (Tex.Crim.App.2013). In my unconstitutionally benefits the criminal-justice view, Appellant has not shown that every application planning account because the account is “too of the statue violates the Carson standard. I would, remote” to be considered a necessary or incidental therefore, affirm the constitutionality of the fee. cost of prosecuting a criminal case as required under Carson, 159 S.W.2d at 127 (concluding that law library fee is remote and unconstitutional). The A. Reviewing a facial challenge Court agrees and cites several possible uses of money from the criminal-justice planning account When reviewing the constitutionality of a statute, “an that are not related to the prosecution of a criminal appellate court must presume that the statute is valid case. This approach is contrary to the standard that and that the legislature was neither unreasonable nor applies to claims that a statute is facially arbitrary in enacting it.” Curry v. State, 186 S.W.3d unconstitutional because (1) it diminishes the 39, 42 (Tex.App.–Houston [1st Dist.] 2005, no pet.) challenger's burden to demonstrate that all—not (citing Ex parte Granviel, 561 S.W.2d 503, 511 some—applications of a statute are unconstitutional; (Tex.Crim.App.1978)). A reviewing court must and (2) it runs afoul of precedent by favoring an make every reasonable presumption in favor of the unconstitutional reading over a constitutional statute's constitutionality, unless the contrary is reading when construing statutes. I would construe clearly shown. Granviel, 561 S.W.2d at 511; see the criminal-justice planning account in its statutory Tex. Gov't Code Ann. § 311.021 (West 2013) context, situated among related statutes, and (noting that courts presume “compliance” with conclude that Appellant has not demonstrated that all Texas and United States Constitutions). applications of the statute are unconstitutional under the Carson standard. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 28 -28- Peraza v. State, --- S.W.3d ---- (2014) tax. This conclusion does not account for the remainder of subsection (e), which continues: The Department of Public Safety (“DPS”) is required to collect a DNA specimen from every The criminal justice division through a grant person charged with certain categories of crimes, [of money from the criminal-justice planning including the crime involved here—aggravated account] shall reimburse the law enforcement sexual assault of a child under 14 years of age—and agency for the costs not later than the 30th day to create a database cataloging the DNA specimens. after the date the certified statement is Tex. Gov't Code Ann. § 411.142 (West 2012) received. If the criminal justice division does (directing DPS to maintain “computerized database not reimburse the law enforcement agency that serves as the central depository in the state for before the 90th day after the date the certified DNA records” that is compatible with FBI's national statement is received, the agency is not DNA identification index system); id. § 411.1471 required to perform duties imposed under (West 2012) (requiring collection of DNA Section 411.1471 or Subchapter B–1, Chapter specimens from people charged with or convicted of 420, Government Code, as applicable, until certain crimes, including aggravated sexual assault the agency has been compensated for all costs of child under 14 years of age); Tex. Penal Code for which the agency has submitted a certified Ann. § 22.021 (West Supp.2014) (defining statement under this subsection. aggravated sexual assault of child under 14 years of age). The criminal-justice planning account allocates Id. Thus, the Court's skepticism is unjustified given funds toward the collection and management of this the wording of the statute regarding reimbursement statewide criminal DNA database. See Tex.Code to fund the DNA project. Crim. Proc. Ann. art. 102.056 (West Supp.2014). Specifically, subsection (e) of article 102.056 directs the Legislature to The Court also insists that, even if DPS were determine and appropriate the necessary reimbursed, the fee is nevertheless unconstitutional amount from the criminal justice planning because the criminal-justice planning account funds account to the criminal justice division of the other unrelated projects. Following this analysis, it governor's office for reimbursement in the would be enough for a party bringing a facial form of grants to the Department of Public constitutional challenge to show that some possible Safety of the State of Texas and other law applications of a statute are unconstitutional to enforcement agencies for expenses incurred in justify invalidating every application of that statute. performing duties imposed on those agencies That is the wrong standard. See Santikos, 836 under Section 411.1471 or Subchapter B–1, S.W.2d at 633 (“[T]he challenger must establish that Chapter 420, Government Code, as applicable. no set of circumstances exists under which the statute will be valid.”). While money from the Id. criminal-justice planning account apparently funds other programs in addition to the DNA database, Appellant presents no evidence that the DNA Record After looking outside the record to press releases and Fee revenue does anything more than reimburse the web sites, the Court insists that “it cannot be criminal-justice planning account for its assumed that DPS was automatically reimbursed by DNA-database expenditures. Appellant appears to virtue of the ‘DNA Record Fee’ for any expenses concede that reimbursement for these expenditures associated with the collection of [Appellant's] would not violate Carson. I agree. sample” and therefore the fee is an unconstitutional © 2015 Thomson Reuters. No claim to original U.S. Government Works. 29 -29- Peraza v. State, --- S.W.3d ---- (2014) *15 I would hold that collecting the DNA Record roadways “may be used for any function performed Fee to benefit the criminal-justice planning account by” the Texas Department of Transportation is constitutional because these funds may be (“TxDOT”). Tex. Transp. Code Ann. § 222.002 allocated to the statewide criminal DNA database. (West 2011) (emphasis added). TxDOT does not Because such an allocation would be constitutional, manage DNA-sample collection, management, or Appellant fails to meet his burden of showing that testing. But TxDOT does not have exclusive access every application of the statute would result in to the state highway fund. Rather, the Transportation constitutional injury. See Rosseau, 396 S.W.3d at Code simply states a general rule that TxDOT “may” 557 (noting moving party has burden of access the fund. In contrast, the Government Code demonstrating statute's unconstitutionality in “all its provides a specific rule that money from the DNA possible applications.”). Accordingly, I would Record Fee in the state highway fund “may be used conclude that Appellant has failed to demonstrate only” by DPS to defray the cost of administering the that the portion of the DNA Record Fee that benefits DNA database. Tex. Gov't Code Ann. § 411.145 the criminal-justice planning account is an (emphasis added). unconstitutional tax. When two statutes concern the same issue, the two C. Constitutionality of the DNA Record Fee should be read together as one law, and an appellate benefiting the state highway fund court should attempt to harmonize any conflicting provisions. Garrett v. State, 424 S.W.3d 624, 629 Likewise, Appellant has not demonstrated that the (Tex.App.–Houston [1st Dist.] 2013, pet. ref d). If portion of the DNA Record Fee that benefits the this is not possible, specific rules prevail over state highway fund is facially invalid. Pursuant to general provisions, absent contrary legislative intent. article 102.020(h) of the Texas Code of Criminal Id.; Azeez v. State, 248 S.W.3d 182, 192 Procedure, a portion of collected DNA Record Fee (Tex.Crim.App.2008). In light of these principles, I revenue goes into the state highway fund. “[M]oney would hold that the statute specifically assigning deposited to the state highway fund under ... DNA Record Fee revenue in the state highway fund 102.020(h), Code of Criminal Procedure, may be to DPS for DNA sampling and crime-lab used only to defray the cost of administering accreditation prevails over the general statute relied [subchapter G of chapter 411] and Section upon by the Court. 411.0205” of the Texas Government Code. Tex. Gov't Code Ann. § 411.145 (West 2012). Subchapter G governs the collection and I would further hold that paying for DNA sampling management of DNA samples, including Appellant's, and crime-lab accreditation is a valid, constitutional by DPS. See Tex. Gov't Code Ann. § 411.1471. use of the DNA Record Fee under Carson. The trial Section 411.0205 regulates the accreditation of court ordered Appellant to surrender a DNA sample forensic crime laboratories by DPS. Tex. Gov't Code as part of the investigation of this case. The fee is Ann. § 411.0205 (West 2012). Thus, under the therefore “necessary or incidental” to the trial of Texas Government Code, the portion of the DNA Appellant's case. See generally Tex. Gov't Code Record Fee credited to the state highway fund is Ann. § 411.143(a) (West 2012) (“The principal used to defray the costs associated with collecting, purpose of the DNA database is to assist a federal, storing, and testing DNA samples. state, or local criminal justice agency in the investigation or prosecution of sex-related offenses or other offenses in which biological evidence is The Court relies on section 222.002 of the Texas recovered.”). Transportation Code, which states that money in the state highway fund not earmarked for public © 2015 Thomson Reuters. No claim to original U.S. Government Works. 30 -30- Peraza v. State, --- S.W.3d ---- (2014) *16 The Court concludes that the fee is an unconstitutional tax because the revenue could possibly benefit other activities unrelated to the statewide DNA database. In doing so, the Court again relies on web sites outside the record because Appellant has provided no record evidence of how the funds are expended and relieves Appellant of his burden when bringing a facial constitutional challenge. Because Appellant has not demonstrated that every application of the statutes assigning DNA Record Fee revenue to the state highway fund would be unconstitutional, I would conclude that Appellant did not demonstrate that the portion of the DNA Record Fee that benefits the state highway fund is facially unconstitutional. Conclusion 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. Accordingly, I respectfully dissent. 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). © 2015 Thomson Reuters. No claim to original U.S. Government Works. 31 -31- Peraza v. State, --- S.W.3d ---- (2014) 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”). End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 32 -32- Peraza v. State, --- S.W.3d ---- (2014) Appellant argues that the statute authorizing collection of the 2014 WL 7530437 fee is facially unconstitutional under the separation-of-powers clause of the Texas Constitution. Tex. Const. art. II, § 1. NOTICE: THIS OPINION HAS NOT BEEN RELEASED Under that provision, a statute authorizing a court to collect FOR PUBLICATION IN THE PERMANENT LAW costs “neither necessary nor incidental to the trial of a REPORTS. UNTIL RELEASED, IT IS SUBJECT TO criminal case” is not valid. Ex parte Carson, 159 S.W.2d 126, REVISION OR WITHDRAWAL. 127 (Tex.Crim.App.1942). Appellant makes only a facial CONCURRING & DISSENTING OPINION challenge, which requires him to “establish that no set of circumstances exists under which the statute will be valid.” Court of Appeals of Texas, S an tiko s v . S t a te, 83 6 S.W .2 d 6 3 1 , 6 3 3 Houston (1st Dist. (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 Osmin Peraza, Appellant Carson standard. I would, therefore, affirm the v. constitutionality of the fee. The State of Texas, Appellee NO. 01–12–00690–CR, NO. 01–12–00691–CR | Opinion issued December 30, 2014 A. Reviewing a facial challenge When reviewing the constitutionality of a statute, “an appellate court must presume that the statute is valid and that the legislature was neither unreasonable nor arbitrary in enacting it.” Curry v. State, 186 S.W.3d 39, 42 (Tex. On Appeal from the 184th District Court, Harris County, App.–Houston [1st Dist.] 2005, no pet.) (citing Ex parte Texas, Trial Court Case Nos. 1305438 and 1305439. Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978)). A Panel consists of Justices Jennings, Sharp, and Brown. reviewing court must make every reasonable presumption in favor of the statute's constitutionality, unless the contrary is clearly shown. Granviel, 561 S.W.2d at 511; see Tex. Gov't Code Ann.. § 311.021 (West 2013) (noting that courts presume “compliance” with Texas and United States CONCURRING & DISSENTING OPINION Constitutions). To prevail, the party asserting a facial challenge “must establish that the statute always operates unconstitutionally in Harvey Brown, Justice all possible circumstances.” Rosseau, 396 S.W.3d at 557. When construing a statute, courts consider, among other I join with the Court's conclusions that the trial court did not factors, the object sought to be attained by the legislation, abuse its discretion in denying Appellant's motion to laws on the same or similar subjects, and the consequences of withdraw his guilty pleas and that the judgment should be a particular construction. Tex. Gov't Code Ann. § 311.023 modified, striking the unsupported “Sheriff's Fee” assessed in (West 2013); see State v. Neesley, 239 S.W.3d 780, 784 both cases. However, I disagree with the Court's conclusion (Tex.Crim.App.2007); Nguyen v. State, 1 S.W.3d 694, that the “DNA Record Fee”1 is unconstitutional. 696–97 (Tex. Crim. App. 1999); see also Dowthitt v. State, 931 S.W.2d 244, 258 (Tex. Crim. App. 1996). If a statute can be reasonably interpreted in a manner that does not offend the constitution, a reviewing court must overrule a facial challenge to the statute's constitutionality. Curry, 186 S.W.3d Facial Challenge to the DNA Record Fee at 42. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 33 -33- Peraza v. State, --- S.W.3d ---- (2014) division of the governor's office for reimbursement in the form of grants to the Department of Public Safety of the State B. Constitutionality of the DNA Record Fee benefiting of Texas and other law enforcement agencies for expenses the criminal-justice planning account incurred in performing duties imposed on those agencies Appellant argues that the DNA Record Fee unconstitutionally under Section 411.1471 or Subchapter B–1, Chapter 420, benefits the criminal-justice planning account because the Government Code, as applicable. account is “too remote” to be considered a necessary or incidental cost of prosecuting a criminal case as required Id. under Carson. 159 S.W.2d at 127 (concluding that law library fee is remote and unconstitutional). The Court agrees and cites several possible uses of money from the criminal-justice planning account that are not related to the prosecution of a criminal case. This approach is contrary to the standard that After looking outside the record to press releases and web applies to claims that a statute is facially unconstitutional sites, the Court insists that “it cannot be assumed that DPS because (1) it diminishes the challenger's burden to was automatically reimbursed by virtue of the ‘DNA Record demonstrate that all—not some—applications of a statute are Fee’ for any expenses associated with the collection of unconstitutional; and (2) it runs afoul of precedent by [Appellant's] sample” and therefore the fee is an favoring an unconstitutional reading over a constitutional unconstitutional tax. This conclusion does not account for the reading when construing statutes. I would construe the remainder of subsection (e), which continues: criminal-justice planning account in its statutory context, situated among related statutes, and conclude that Appellant The criminal justice division through a grant [of money from has not demonstrated that all applications of the statute are the criminal-justice planning account] shall reimburse the law unconstitutional under the Carson standard. enforcement agency for the costs not later than the 30th day after the date the certified statement is received. If the criminal justice division does not reimburse the law The Department of Public Safety (“DPS”) is required to enforcement agency before the 90th day after the date the collect a DNA specimen from every person charged with certified statement is received, the agency is not required to certain categories of crimes, including the crime involved perform duties imposed under Section 411.1471 or here—aggravated sexual assault of a child under 14 years of Subchapter B–1, Chapter 420, Government Code, as age—and to create a database cataloging the DNA specimens. applicable, until the agency has been compensated for all Tex. Gov't Code Ann. § 411.142 (West 2012) (directing DPS costs for which the agency has submitted a certified statement to maintain “computerized database that serves as the central under this subsection. depository in the state for DNA records” that is compatible with FBI's national DNA identification index system); id. § Id. Thus, the Court's skepticism is unjustified given the 411.1471 (West 2012) (requiring collection of DNA wording of the statute regarding reimbursement to fund the specimens from people charged with or convicted of certain DNA project. crimes, including aggravated sexual assault of child under 14 years of age); Tex. Penal Code Ann. § 22.021 (West Supp.2014) (defining aggravated sexual assault of child under 14 years of age). The criminal-justice planning account The Court also insists that, even if DPS were reimbursed, the allocates funds toward the collection and management of this fee is nevertheless unconstitutional because the statewide criminal DNA database. See Tex.Code Crim. Proc. criminal-justice planning account funds other unrelated Ann.. art. 102.056 (West Supp.2014). Specifically, subsection projects. Following this analysis, it would be enough for a (e) of article 102.056 directs the Legislature to party bringing a facial constitutional challenge to show that some possible applications of a statute are unconstitutional to determine and appropriate the necessary amount from the justify invalidating every application of that statute. That is criminal justice planning account to the criminal justice the wrong standard. See Santikos, 836 S.W.2d at 633 (“[T]he © 2015 Thomson Reuters. No claim to original U.S. Government Works. 34 -34- Peraza v. State, --- S.W.3d ---- (2014) challenger must establish that no set of circumstances exists The Court relies on section 222.002 of the Texas under which the statute will be valid.”). While money from Transportation Code, which states that money in the state the criminal-justice planning account apparently funds other highway fund not earmarked for public roadways “may be programs in addition to the DNA database, Appellant presents used for any function performed by” the Texas Department of no evidence that the DNA Record Fee revenue does anything Transportation (“TxDOT”). Tex. Transp. Code Ann. § more than reimburse the criminal-justice planning account for 222.002 (West 2011) (emphasis added). TxDOT does not its DNA-database expenditures. Appellant appears to concede manage DNA-sample collection, management, or testing. But that reimbursement for these expenditures would not violate TxDOT does not have exclusive access to the state highway Carson. I agree. fund. Rather, the Transportation Code simply states a general rule that TxDOT “may” access the fund. In contrast, the Government Code provides a specific rule that money from I would hold that collecting the DNA Record Fee to benefit the DNA Record Fee in the state highway fund “may be used the criminal-justice planning account is constitutional because only ” by DPS to defray the cost of administering the DNA these funds may be allocated to the statewide criminal DNA database.Tex. Gov't Code Ann. § 411.145 (emphasis added). database. Because such an allocation would be constitutional, Appellant fails to meet his burden of showing that every application of the statute would result in constitutional injury. When two statutes concern the same issue, the two should be See Rosseau, 396 S.W.3d at 557 (noting moving party has read together as one law, and an appellate court should burden of demonstrating statute's unconstitutionality in “all its attempt to harmonize any conflicting provisions. Garrett v. possible applications.”). Accordingly, I would conclude that State, 424 S.W.3d 624, 629 (Tex.App.—Houston [1st Dist.] Appellant has failed to demonstrate that the portion of the 2013, pet. ref'd). If this is not possible, specific rules prevail DNA Record Fee that benefits the criminal-justice planning over general provisions, absent contrary legislative intent. Id.; account is an unconstitutional tax. 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 Fee revenue in the state C. Constitutionality of the DNA Record Fee benefiting highway fund to DPS for DNA sampling and crime-lab the state highway fund accreditation prevails over the general statute relied upon by Likewise, Appellant has not demonstrated that the portion of the Court. the DNA Record Fee that benefits the state highway fund is facially invalid. Pursuant to article 102.020(h) of the Texas Code of Criminal Procedure, a portion of collected DNA I would further hold that paying for DNA sampling and Record Fee revenue goes into the state highway fund. crime-lab accreditation is a valid, constitutional use of the “[M]oney deposited to the state highway fund under ... DNA Record Fee under Carson. The trial court ordered 102.020(h), Code of Criminal Procedure, may be used only Appellant to surrender a DNA sample as part of the to defray the cost of administering [subchapter G of chapter investigation of this case. The fee is therefore “necessary or 411] and Section 411.0205” of the Texas Government Code. incidental” to the trial of Appellant's case. See generally Tex. Tex. Gov't Code Ann. § 411.145 (West 2012). Subchapter G Gov't Code Ann. § 411.143(a) (West 2012) (“The principal governs the collection and management of DNA samples, purpose of the DNA database is to assist a federal, state, or including Appellant's, by DPS. See Tex. Gov't Code Ann.. § local criminal justice agency in the investigation or 411.1471. Section 411.0205 regulates the accreditation of prosecution of sex-related offenses or other offenses in which forensic crime laboratories by DPS. Tex. Gov't Code Ann. § biological evidence is recovered.”). 411.0205 (West 2012). Thus, under the Texas Government Code, the portion of the DNA Record Fee credited to the state highway fund is used to defray the costs associated with The Court concludes that the fee is an unconstitutional tax collecting, storing, and testing DNA samples. because the revenue could possibly benefit other activities unrelated to the statewide DNA database. In doing so, the Court again relies on web sites outside the record because © 2015 Thomson Reuters. No claim to original U.S. Government Works. 35 -35- Peraza v. State, --- S.W.3d ---- (2014) Appellant has provided no record evidence of how the funds are expended and relieves Appellant of his burden when bringing a facial constitutional challenge. Because Appellant has not demonstrated that every application of the statutes assigning DNA Record Fee revenue to the state highway fund would be unconstitutional, I would conclude that Appellant did not demonstrate that the portion of the DNA Record Fee that benefits the state highway fund is facially unconstitutional. Conclusion 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. Accordingly, I respectfully dissent. Justice Brown, concurring in part and dissenting in part. Footnotes 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”). End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 36 -36-