ACCEPTED
14-12-00378-CR
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
8/31/2015 11:57:18 AM
No. 14-12-00378-CR
CHRISTOPHER PRINE
CLERK
In the Court of Appeals for the
Fourteenth District of Texas FILED IN
14th COURT OF APPEALS
at Houston HOUSTON, TEXAS
8/31/2015 11:57:18 AM
♦
CHRISTOPHER A. PRINE
Clerk
No. 1313253
In the 228th Criminal District Court
Harris County, Texas
♦
ORLANDO SALINAS
Appellant
V.
THE STATE OF TEXAS
Appellee
♦
STATE’S BRIEF ON REMAND
FROM THE COURT OF CRIMINAL APPEALS
♦
DEVON ANDERSON
District Attorney
Harris County, Texas
BRIDGET HOLLOWAY
Assistant District Attorney
Harris County, Texas
Texas Bar No. 24025227
holloway_bridget@dao.hctx.net
Harris County Criminal Justice Center
1201 Franklin, Suite 600
Houston, Texas 77002
Tel.: 713/755-5826
FAX No.: 713/755-5809
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:
Salvador Salinas, Sr.
Counsel for the State:
Devon Anderson District Attorney of Harris County
Bridget Holloway Assistant District Attorney on appeal
Appellant or criminal defendant:
Orlando Salinas
Counsel for Appellant:
Jani Maselli Assistant Public Defender at hearing and on appeal
R.P. “Skip” Cornelius —Defense counsel at trial
Trial Judge:
Honorable Marc Carter Presiding Judge at MNT hearing
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TABLE OF CONTENTS
IDENTIFICATION OF THE PARTIES.............................................................................................. i
TABLE OF CONTENTS ........................................................................................................................ii
INDEX OF AUTHORITIES................................................................................................................ iii
STATEMENT OF THE CASE...............................................................................................................1
STATEMENT OF FACTS ..................................................................................................................... 3
A. Background............................................................................................................................. 3
B. This Court’s Opinion ........................................................................................................... 3
C. Court of Criminal Appeals .................................................................................................4
GROUND UPON REMAND ............................................................................................................... 6
Whether, In Accordance with Peraza, and Based Upon the
Statute as it is Written, Section 133.102 is Unconstitutional on
its Face, Without Regard to Severability Principles or to
Evidence of What the Funds Designated in the Statute
Actually Do.
Analysis.................................................................................................................................................. 6
A. Peraza v. State ........................................................................................................................ 6
B. Section 133.102 ....................................................................................................................... 7
PRAYER .................................................................................................................................................... 11
CERTIFICATE OF SERVICE AND WORD LIMIT COMPLIANCE .................................... 12
ii
INDEX OF AUTHORITIES
CASES
Ex parte Carson,
159 S.W.2d 126 (Tex. Crim. App. 1942) ....................................................................... 3, 6
LeCroy v. Hanlon,
713 S.W.2d 335 (Tex. 1986) ................................................................................................. 3
Peraza v. State,
__S.W.3d__, PD-0100-15,
2015 WL 3988926 (Tex. Crim. App. July 1, 2015)............................................... passim
Salinas v. State,
__S.W.3d__, No. PD-0419-14,
2015 WL 3988955 (Tex. Crim. App. July 1, 2015)................................................. 2, 4, 5
Salinas v. State,
426 S.W.3d 318 (Tex. App. —Houston [14th Dist.] 2014),
rev.’d & remand by __S.W.3d__, 2015 3988955 (Tex. Crim. App. July 1, 2015) ........1, 8
State ex rel. Lykos v. Fine,
330 S.W.3d 904 (Tex. Crim. App. 2011)........................................................................... 8
State v. Rosseau,
396 W.W.3d 550 (Tex. Crim. App. 2013).................................................................... 7, 8
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STATUTES
TEX. LOC. GOV’T CODE ANN.
§133.102(a)(1) (West 2012).................................................................................................. 8
TEX. LOC. GOV’T CODE ANN.
§133.102(c) (West 2012) ....................................................................................................... 8
TEX. LOC. GOV’T CODE ANN.
§133.102(e) (West 2012) ..................................................................................................... 10
RULES
TEX. R. APP. P. 38.2(a)(1)(A) ..................................................................................................... i
iv
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
Appellant, Orlando Salinas, was charged by felony indictment with injury to
an elderly. (CR at 10). Appellant entered a plea of “not guilty” to the offense.
(RRIII at 6). After the jury found appellant guilty as charged, the judge sentenced
appellant to confinement for five years. (CR at 64, 67; RRIV at 215; RRV at 9).
This Court affirmed appellant’s conviction in a published opinion delivered on
December 5, 2013. In response to a motion for rehearing by appellant, this Court
withdrew its opinion, issued a new one in its steed, and affirmed appellant’s
conviction again on March 6, 2014. Justice Jamison issued a published concurring
and dissenting opinion. See Salinas v. State, 426 S.W.3d 318 (Tex. App. —Houston
[14th Dist.] 2014), rev.’d & remand by __S.W.3d__, 2015 3988955 (Tex. Crim. App.
July 1, 2015).
The Court of Criminal Appeals granted the following two grounds for
review on September 17, 2014:
1. The Fourteenth Court of Appeals decision regarding the
constitutionality of the consolidated court cost on severability
grounds (neither raised by the State nor briefed by either party)
failed to properly address the merits of the argument.
2. Whether the Fourteenth Court of Appeals decision that the
“appellant failed to satisfy his burden to show that the statute is
invalid in all possible applications because he has not established
what the funds designated in [Texas Local Government Code]
section 133.102(e) actually do” is erroneous in light of clear
precedent from this court in reviewing facial challenges to the
constitutionality of a statute.
On July 1, 2015, the Court of Criminal Appeals issued an opinion, sustaining
both of appellant’s issues, and reversing and remanding to this Court. See Salinas v.
State, __S.W.3d__, No. PD-0419-14, 2015 WL 3988955 (Tex. Crim. App. July 1,
2015). Subsequently, this Court has ordered the parties to address the application
of Peraza v. State, __S.W.3d__, PD-0100-15, 2015 WL 3988926 (Tex. Crim. App. July
1, 2015) upon remand.
Because the $133 consolidated court cost assessed under Section 133.102 of
the Local Government Code was to reimburse the State for prosecuting appellant
on a felony offense and conviction, and because Section 103.102(e) outlines the
allocation of monies to certain “legitimate criminal justice purposes” all “related to
the administration of our criminal justice system,” Section 133.102 is not
unconstitutional and the trial court did not err in denying appellant’s motions for
new trial and in arrest of judgment.
♦
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STATEMENT OF FACTS
A. Background
A jury found appellant guilty of the felony of elderly abuse. (RRIV at 215).
Handwritten on appellant’s judgment and sentence is “$304.00” in court costs.
(CR at 67). Five days after the judgment and sentence, appellant filed a “motion
for bill of costs to be part of clerk’s record on appeal.” (CR at 76). Thereafter, the
trial court ordered the district clerk’s office to file a certified bill of costs. (CR at
81). A certified bill of costs, showing $304.00 total amount owed in court costs,
was filed. (CR at 83). Appellant then filed a motion for new trial and a motion in
arrest of judgment, contesting the constitutionality of $133.00 in “consolidated
court cost.” (CR at 83-261). Appellant’s motions were denied and appellant
appealed. (RRVII at 9).
B. This Court’s Opinion
On appeal, relying on Ex parte Carson, 159 S.W.2d 126 (Tex. Crim. App. 1942)
and LeCroy v. Hanlon, 713 S.W.2d 335 (Tex. 1986), appellant argued the mandatory
$133 consolidated court cost acts as an unconstitutional tax because most of that
money, once collected, will be destined for accounts and funds that were not
“necessary or incidental” to the function of the courts. The State responded that
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the division and destination of the money collected for prosecuting convicted
defendants did not transform the cost into a tax and all programs receiving a
portion of the cost assists in the improvement of the criminal justice system.
This Court held that appellant’s facial constitutional challenge to the
statute failed for two reasons: (1) appellant failed to satisfy his burden to show the
statute was “invalid in all possible applications because he has not established
what the funds designated in section 133.102(e) actually do;” and (2) even
assuming some of the destinations are not directly related to functions of the court
system, because the money can be collected in accordance with severability
principles, appellant has not shown that the statute always operates
unconstitutionally as a tax or that the entirety of the $133 should be deleted from
the trial court’s judgment.
C. Court of Criminal Appeals
In a rather short opinion, the Court of Criminal Appeals noted that the issue
before it was whether this Court applied the proper standard to appellant’s facial
challenge to section 133.102. See Salinas, 2015 WL at *2. The Court answered in the
negative. First, the Court concluded this Court did not properly address
appellant’s argument by requiring him “to perform an analysis of the severability of
the statute,” which is only necessary after a court finds a statute unconstitutional
4
on its face, which this Court never found. See id. at *3. Second, by finding the
statute not unconstitutional because appellant failed to establish what the funds
actually do, which is irrelevant in a facial challenge to a statute, this Court further
improperly addressed appellant’s argument on appeal. See id. at *3-4. The Court of
Criminal Appeals concluded by stating: “We emphasize that demonstrating what
the funds actually do is not the same as demonstrating what the governing
statutes say about the intended use of the funds.” See id. at *4. The Court then
reversed the judgment and remanded this case for this Court to address the
following issue:
[W]hether, based upon the statute as written, Section 133.102
is unconstitutional on its face, without regard to severability
principles or to evidence of what the funds designated in the
statute actually do.
See id.
♦
5
GROUND UPON REMAND
Whether, In Accordance with Peraza, and Based Upon the
Statute as it is Written, Section 133.102 is Unconstitutional on its
Face, Without Regard to Severability Principles or to Evidence of
What the Funds Designated in the Statute Actually Do.
ANALYSIS
A. Peraza v. State
Simultaneous with the remand in this case, the Court of Criminal Appeal’s
issued its opinion in Peraza. In Peraza, the Court of Criminal Appeals granted the
State’s petition for discretionary review to address whether a court cost labeled
“DNA record fee,” assessed pursuant to article 102.020, is an unconstitutional tax.
See id., 2015 WL at *1. The $250 cost was mandatory upon Peraza’s convictions for
aggravated sexual assault of a child under the age of 14. Much like here, and also
relying on Ex parte Carson, Peraza argued the DNA record fee was an
unconstitutional tax based upon the disbursement of the fee after collection,
including portions to the state highway fund and criminal justice planning
account. See id. at *1-3.
Disagreeing with the First Court of Appeals’ opinion in Peraza, the Court of
Criminal Appeals noted a statute is not facially unconstitutional because there
might potentially be some remote circumstance in which it may be applied
6
unconstitutionally; rather, a statute is facially unconstitutional “only if it ‘always
operates unconstitutionally in all possible circumstances.’” See id. at *5 (quoting
State v. Rosseau, 396 S.W3d 550, 556 (Tex. Crim. App. 2013)).
Revisiting Carson, the Court found the “necessary” and “incidental” test for
determining whether a court cost is constitutional “too limiting” in the 73 years
since Carson was decided and after much change in the prosecution of criminal
cases and our criminal justice system. See Peraza, 2015 WL at *6. Carson,
therefore, is no longer controlling authority. Instead, the test going forward is
whether the allocation of court costs assessed is to be expended for “legitimate
criminal justice purposes,” defined as “one that relates to the administration of our
criminal justice system.” See id. at *7. Peraza held that the funds collected as
court costs under Article 102.020, labeled as “DNA record fee,” allow for funds to
be expended for legitimate criminal justice purposes and therefore operates
constitutionally. See id. at *10.
B. Section 133.102
Appellant argued to this Court and the Court of Criminal Appeals that
Section 133.102(a)(1) of the Local Government Code was facially unconstitutional
under the separation of powers clause of the Texas Constitution “[b]ecause the
[$133] consolidated court cost is primarily used to fund non-court programs” and
7
effectively impermissibly compels courts to collect a “tax.” This Court properly
observed that “to prevail on a facial challenge, a party must establish that the
statute always operates unconstitutionally in all possible circumstances.” See
Salinas, 426 S.W.3d at 326; see also Rosseau, 396 W.W.3d at 557. This Court also
correctly explained that the analysis of a statute’s constitutionality “must begin
with the presumption that the statute is valid and that the Legislature did not act
arbitrarily or unreasonably in enacting it.” See id. Thus, appellant, as the individual
challenging the statute, has the burden to establish its unconstitutionality. In a
facial challenge to a statute’s constitutionality, courts consider the statute only as
it is written, rather than how it operates in practice. See Peraza, 2015 WL at *4; see
also State ex rel. Lykos v. Fine, 330 S.W.3d 904, 908 (Tex. Crim. App. 2011).
Under Section 133.102 of the Local Government Code, every person
convicted of a felony is assessed a consolidated court cost of $133.00. See TEX. LOC.
GOV’T CODE ANN. § 133.102(a)(1) (West 2012). Section 133.102(c) states that the
money collected for the consolidated court costs be allocated as stated in
Subsection (e). TEX. LOC. GOV’T CODE ANN. § 133.102(c) (West 2012). Subsection
(e) requires the Comptroller of Public Accounts to deposit specified percentages
of money received from the consolidated court cost to the following funds and
accounts:
8
• Abused Children’s Counseling;
• Crime Stoppers Assistance;
• Breath Alcohol Testing;
• Bill Blackwood Law Enforcement Management Institute;
• Law Enforcement Officers Administrative and Continuing
Education;
• Comprehensive Rehabilitation;
• Operator’s and Chauffeur’s License (now Law Enforcement and
Custodial Officer Supplemental Retirement Fund1);
• Criminal Justice Planning;
• An Account in the State Treasury to be Used Only for the
Establishment and Operation of the Center for the Study and
Prevention of Juvenile Crime and Delinquency at Prairie View
A&M University;
• Compensation to Victims of Crime Fund;
• Emergency Radio Infrastructure Account;
• Judicial and Court Personnel Training Fund;
• An Account in the State Treasury to be Used for the
Establishment and Operation of the Correctional Management
Institute of Texas and Criminal Justice Center Account; and
1
Change took effect September 1, 2013.
9
• Fair Defense Account.
TEX. LOC. GOV’T CODE ANN. § 133.102(e) (West 2012).
Under subsection (e) of Section 133.102, every single fund or account can be
labeled as a “legitimate criminal justice purpose” “relate[d] to the administration
of our criminal justice system.” See Peraza, 2015 WL at *7. By appellant focusing on
where the funds “might actually go” is irrelevant. This Court is to “consider only
how the statute is written, not how it operates in practice.” See Salinas, 2015 WL at
*4.
Because the $133 consolidated court cost assessed under Section 133.102 of
the Local Government Code was to reimburse the State for prosecuting appellant
on a felony offense and conviction, and because Section 103.102(e) outlines the
allocation of monies to certain “legitimate criminal justice purposes” all “related to
the administration of our criminal justice system,” Section 133.102 is not
unconstitutional and the trial court did not err in denying appellant’s motions for
new trial and in arrest of judgment.
Appellant’s conviction and court cost of $304.00 should be affirmed.
♦
10
PRAYER
The State respectfully requests this Court find Section 133.102 of the Local
Government Code constitutional and (re)affirm appellant’s conviction and
$304.00 in court costs.
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
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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 2501 words in the document; and (b)
that the undersigned attorney requested that a copy of this document be served to
the following attorneys via TexFile at the following email on August 31, 2015:
Jani Maselli
Assistant Public Defender
Email: jani.maselli@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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