ACCEPTED
01-14-00676-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
No. 01-14-00675-CR
6/23/2015 2:51:33 PM
CHRISTOPHER PRINE
CLERK
No. 01-14-00676-CR
In the
Court of Appeals FILED IN
1st COURT OF APPEALS
For the HOUSTON, TEXAS
First District of Texas 6/23/2015 2:51:33 PM
At Houston CHRISTOPHER A. PRINE
Clerk
♦
Nos. 1394947 & 1394948
In the 174th Criminal District Court
Of Harris County, Texas
♦
ISRAEL MONTOYA ALCARAZ
Appellant
V.
THE STATE OF TEXAS
Appellee
♦
STATE’S APPELLATE BRIEF
♦
DEVON ANDERSON
District Attorney
Harris County, Texas
BRIDGET HOLLOWAY
Assistant District Attorney
Harris County, Texas
Texas Bar No. 24025227
holloway_bridget@dao.hctx.net
AMY MCCAULEY
Assistant District Attorney
Harris County, Texas
Harris County Criminal Justice Center
1201 Franklin, Suite 600
Houston, Texas 77002
Tel.: 713·755·5826
ORAL ARGUMENT NOT REQUESTED
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, the State does not
request oral argument.
IDENTIFICATION OF THE PARTIES
Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all
interested parties is provided below.
Complainant, victim, or aggrieved party:
XX—a minor
Counsel for the State:
Devon Anderson District Attorney of Harris County
Bridget Holloway Assistant District Attorney on appeal
Amy McCauley Assistant District Attorney at plea
Appellant or criminal defendant:
Israel Montoya Alcaraz
Counsel for Appellant:
Alexander Bunin Chief Public Defender
Angela L. Cameron —Assistant Public Defender on appeal
Mark Thering —Attorney at plea
Trial Judge:
Honorable Ruben Guerrero Presiding Judge
TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT .......................................................... 1
IDENTIFICATION OF THE PARTIES ................................................................................ 1
TABLE OF CONTENTS........................................................................................................... 2
INDEX OF AUTHORITIES .................................................................................................... 3
STATEMENT OF THE CASE ................................................................................................ 5
STATEMENT OF FACTS ....................................................................................................... 5
SUMMARY OF THE ARGUMENT ..................................................................................... 7
REPLY TO APPELLANT’S THIRD ISSUE PRESENTED............................................... 8
Appellant’s judgment should be modified to correctly indicate he did
not waive his right to appeal.
REPLY TO APPELLANT’S FIRST ISSUE PRESENTED ................................................ 8
This Court should wait for the Court of Criminal Appeal’s opinion in
Peraza v. State, 457 S.W.3d 134 (Tex. App. —Houston [1st Dist.] 2014,
pet. granted Mar. 25, 2015), before ruling on appellant’s challenge to
the “DNA Testing Fee.”
REPLY TO APPELLANT’S SECOND ISSUE PRESENTED..........................................10
Analysis ................................................................................................................................... 10
Because the record supports that appellant was arrested for three
felonies and convicted for two, and because the Code of Criminal
Procedure demands the $5 “Arrest w/out Warrant/Capias” fee upon
conviction, the trial court did not err in assessing the court cost.
CONCLUSION .........................................................................................................................13
CERTIFICATE OF SERVICE AND WORD LIMIT COMPLIANCE ....................... 14
2
INDEX OF AUTHORITIES
CASES
Cardenas v. State,
403 S.W.3d 377
(Tex. App. —Houston [1st Dist.], aff’d 423 S.W.3d 396 (Tex. Crim. App. 2014) 11
Ex parte Carson,
159 S.W.2d 126 (Tex. Crim. App. 1942)........................................................................... 8
Garza v. State,
425 S.W.3d 649
(Tex. App. —Houston [14th Dist.] 2014, no pet.) ...................................................... 12
Guzman v. State,
No. 01-11-00862-CR, 2013 WL 4003791
(Tex. App. —Houston [1st Dist.] Aug. 6, 2013, pet ref’d) ......................................... 12
Johnson v. State,
423 S.W.3d 385 (Tex. Crim. App. 2014)........................................................................ 10
Mouton v. State,
No. 01-12-00642-CR, No. 01-12-00643-CR, 2013 WL 3522650
(Tex. App. —Houston [1st Dist.] July 11, 2013, no pet.) ............................................ 12
O’Bannon v. State,
435 S.W.3d 378
(Tex. App. —Houston [14th Dist.] 2014, no pet.) ........................................................ 9
Peraza v. State,
457 S.W.3d 134
(Tex. App. —Houston [1st Dist.] 2014, pet. granted Mar. 25, 2015) ....................... 8
Peyronel v. State,
446 S.W.3d 151
(Tex. App. —Houston [1st Dist.] pet. granted Dec. 17, 2014).................................. 12
3
STATUTES
TEX. CODE CRIM. PROC. ANN.
art. 102.020 (West 2006) .................................................................................................... 8
TEX. CODE CRIM. PROC. ANN.
art. 102.011 (West 2006) .............................................................................................. 11, 12
TEX. CODE CRIM. PROC. ANN.
art. 42.16 (West 2006) ....................................................................................................... 10
RULES
TEX. R. APP. P. 38.2(a)(1)(A) .....................................................................................................1
TEX. R. APP. P. 39.1 .......................................................................................................................1
TEX. R. APP. P. 9.4(g) ..................................................................................................................1
4
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
Appellant, Israel Montoya Alcaraz, was charged with one count of
aggravated sexual assault of a child and one count of possession of child
pornography. (CR947 at 24; CR948 at 16). Appellant entered a plea of “guilty” to
both offenses and his cases were reset for a presentence investigation (PSI).
(CR947 at 32; CR948 at 24; RRI at 88-89). After the PSI hearing, appellant was
sentenced to confinement for 50 years and 10 years respectively, to run
concurrently. (CR947 at 62; CR948 at 37; RRI at 88-89). Written notices of
appeal were timely filed. (CR947 at 67; CR948 at 40).
♦
STATEMENT OF FACTS
Appellant was indicted for aggravated sexual assault of a child under the
age of 14 and for possession of child pornography. No enhancements were alleged.
(CR947 at 24; CR948 at 16). Appellant entered a plea of “guilty” to both charges
without agreed punishment recommendations. Appellant signed a written
Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession
in which he agreed “I understand the above allegations and I confess that they are
true and that the acts alleged above were committed on June 2, 2013.” (CR947 at 32;
5
CR948 at 24) (emphasis handwritten on forms). The court costs assessed against
appellant included a $250 “DNA Testing Fee” and a $5 “Arrest w/o
Warrant/Capias.” (CR947 at 64; CR948 at 39). While initially the trial court
certified that appellant did not have the right to appeal, the trial court properly
changed that ruling. (RR 1-29-15).
♦
6
SUMMARY OF THE ARGUMENT
Appellant’s judgment should be modified to correctly indicate he did not
waive his right to appeal. Furthermore, this Court should wait for the Court of
Criminal Appeal’s opinion in Peraza v. State, 457 S.W.3d 134 (Tex. App. —Houston
[1st Dist.] 2014, pet. granted Mar. 25, 2015), before ruling on appellant’s challenge
to the “DNA Testing Fee.” Lastly, it is submitted that the $5 “Arrest w/o
Warrant/Capias” fee is supported by the record and proper.
♦
7
REPLY TO APPELLANT’S THIRD ISSUE PRESENTED
In his third issue presented on appeal, appellant asks this Court to reform
the judgment to reflect that appellant did not waive his right to appeal. Because
the record shows appellant did not waive his right to appeal, the State does not
oppose this request. Appellant’s third issue presented on appeal should be
sustained.
♦
REPLY TO APPELLANT’S FIRST ISSUE PRESENTED
Relying on Peraza v. State, 457 S.W.3d 134 (Tex. App. —Houston [1st Dist.]
2014, pet. granted Mar. 25, 2015), appellant challenges the trial court’s assessment
of the “DNA Testing Fee” in his bill of costs as unconstitutional. Appellant
requests this Court modify each judgment to delete the $250 charge from court
costs.
In Peraza, this Court held that TEX. CODE CRIM. PROC. art. 102.020, “Costs
related to DNA testing,” authorizes an unconstitutional tax because the costs it
imposes are not “necessary or incidental to a criminal trial.” Peraza, 457 S.W.3d at
141 (citing Ex parte Carson, 159 S.W.2d 126 (Tex. Crim. App. 1942)). Not pointed
out by appellant, however, is that the Fourteenth Court of Appeals has disagreed
8
with this Court’s ruling in Peraza. See O’Bannon v. State, 435 S.W.3d 378 (Tex. App.
—Houston [14th Dist.] 2014, no pet.).
After appellant filed his appellate brief in this case, the Court of Criminal
Appeals granted petition for discretionary review in Peraza. Briefs have been filed
and the Court of Criminal Appeals heard argument on May 20, 2015, regarding
whether the $250 DNA Testing Fee is constitutional; so guidance from the Court
of Criminal Appeals is forthcoming to reconcile Peraza and O’Bannon. The State
requests this Court delay its ruling on this issue until the Court of Criminal
Appeals has spoken.
♦
9
REPLY TO APPELLANT’S SECOND ISSUE PRESENTED
Appellant challenges another court cost in his second issue presented on
appeal. Appellant argues the $5 “Arrest w/o Warrant/Capias” part of the Sheriff’s
fee should be deleted from the bill of costs because the bill of costs also shows a
$50 “Serving Capias” fee and “[o]ne cannot be arrest[ed] both with and without a
warrant or capias.” 1 Because the record supports that appellant was arrested for
three felonies and convicted on two, and because the Code of Criminal Procedure
demands the $5 “Arrest w/out Warrant/Capias” fee upon conviction, the trial
court did not err in assessing the court cost.
ANALYSIS
The assessment of court costs on appeal is reviewed to determine if there is
a basis for the cost, not to determine if there was sufficient evidence offered at trial
to prove each cost. Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014). If
the defendant receives any punishment other than a fine, the judgment must
declare the costs against the defendant and order the collection of those costs. See
TEX. CODE CRIM. PROC. ANN. art. 42.16 (West 2006). When a specific amount of
court costs is written in the judgment, an appellate court errs when it deletes the
1
Appellant’s brief at 12.
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specific amount if there is a basis for the cost. Johnson, 423 S.W.3d at 389.
Although it is the most expedient and preferable method to sustain statutorily
authorized and assessed court costs, a bill of costs is not required to support the
amount of court costs if the reviewing court concludes that the assessed costs are
supported by facts in the record. Id. at 395.
Because the record demonstrates that appellant pled guilty and was thus
convicted in district court of two felonies, felonies under section 21.011 of the
Texas Penal Code, a factual basis exists for both $5 “Arrest w/o Warrant/Capias”
and $50 “Serving Capias” fees. See TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(1)
(West 2006) (defendant convicted of felony must pay $5 when a peace officer
makes a warrantless arrest); TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(2) (West
2006) (a defendant convicted of a felony must pay $50 for executing or processing
arrest warrant); see also TEX. CODE CRIM. PROC. ANN. art. 102.011(e) (West 2006)
(“A fee under Subsection ... (a)(2) ... shall be assessed on conviction, regardless of
whether the defendant was also arrested at the same time for another offense, and
shall be assessed for each arrest made of a defendant arising out of the offense for
which the defendant has been convicted.”)).
While appellant claims it is impossible to be arrested both with and
without a warrant, both fees have been assessed and upheld in other cases. See
Cardenas v. State, 403 S.W.3d 377 (Tex. App. —Houston [1st Dist.], aff’d 423 S.W.3d
11
396 (Tex. Crim. App. 2014); Peyronel v. State, 446 S.W.3d 151 (Tex. App. —Houston
[1st Dist.] pet. granted Dec. 17, 2014); 2 Garza v. State, 425 S.W.3d 649 (Tex. App. —
Houston [14th Dist.] 2014, no pet.); Guzman v. State, No. 01-11-00862-CR, 2013 WL
4003791 (Tex. App. —Houston [1st Dist.] Aug. 6, 2013, pet ref’d); Mouton v. State,
No. 01-12-00642-CR, No. 01-12-00643-CR, 2013 WL 3522650 (Tex. App. —
Houston [1st Dist.] July 11, 2013, no pet.). Furthermore, while the record here
indicates appellant had a warrant issued for his arrest, he was arrested for three
felonies (evading charge was dropped). Even assuming the arrest warrant was for
both aggravated sexual assault and for possession of child pornography, appellant
had a third arrest for evading, which would have been without a warrant, but
arose from the convicted offenses. (RRPSI at 17, 89). See TEX. CODE CRIM. PROC.
ANN. art. 102.011(e) (West 2006). Appellant’s second issue on appeal should be
overruled.
♦
2
Petition for discretionary granted on an unrelated issue.
12
CONCLUSION
It is respectfully submitted that appellant’s judgment be modified to
indicate he did not waive his right to appeal. It is further submitted that this
Court should wait for the Court of Criminal Appeal’s opinion in Peraza before
ruling on appellant’s challenge to the “DNA Testing Fee.” Lastly, it is submitted
that the $5 “Arrest w/o Warrant/Capias” fee is supported by the record and
proper.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ Bridget Holloway
BRIDGET HOLLOWAY
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
713.755.5826
Texas Bar No. 24025227
holloway_bridget@dao.hctx.net
13
CERTIFICATE OF SERVICE AND WORD LIMIT COMPLIANCE
This is to certify: (a) that the word count of the computer program used to
prepare this document reports that there are 2036 words in the document; and (b)
that the undersigned attorney requested that a copy of this document be served to
appellant’s attorneys via TexFile at the following emails on June 23, 2015:
Angela L. Cameron
Assistant Public Defender
Email: angela.cameron@pdo.hctx.net
/s/ Bridget Holloway
BRIDGET HOLLOWAY
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
713.755.5826
Texas Bar No. 24025227
holloway_bridget@dao.hctx.net
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