ACCEPTED
01-12-00647-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
11/10/2015 8:05:53 PM
No. 01-12-00647-CR CHRISTOPHER PRINE
CLERK
In the
Court of Appeals
For the FILED IN
1st COURT OF APPEALS
First District of Texas HOUSTON, TEXAS
At Houston 11/10/2015 8:05:53 PM
♦ CHRISTOPHER A. PRINE
Clerk
No. 1247950
In the 174th District Court
Of Harris County, Texas
♦
CARLTON CHARLES PENRIGHT
Appellant
V.
THE STATE OF TEXAS
Appellee
♦
STATE’S COURT-ORDERED RESPONSE TO APPELLANT’S
MOTION FOR REHEARING EN BANC
♦
DEVON ANDERSON
District Attorney
Harris County, Texas
JESSICA AKINS
Assistant District Attorney
Harris County, Texas
State Bar Number: 24029415
akins_jessica@dao.hctx.net
H. C. Criminal Justice Center
1201 Franklin, Suite 600
Houston, Texas 77002
Telephone: 713.274.5826
INDEX OF AUTHORITIES
CASES
Cardenas v. State,
423 S.W.3d 396 (Tex. Crim. App. 2014) ....................................................................................... 6
Hearne v. State,
415 S.W.3d 365 (Tex. App.—
Houston [1st Dist.] 2013, pet. ref’d) ............................................................................................... 7
Penright v. State,
No. 01-12-00647-CR, 2015 WL 5770006
(Tex. App.—Houston [1st Dist.] Sept. 29, 2015 no pet. h.) ................................................. 1, 4
Peraza v. State,
467 S.W.3d 508 (Tex. Crim. App. 2015) ....................................................................................... 3
Salinas v. State,
464 S.W.3d 363 (Tex. Crim. App. 2015) .................................................................................. 2, 4
State v. Rosseau,
396 S.W3d 550 (Tex. Crim. App. 2013) ........................................................................................ 3
Thomas v. State,
445 S.W.3d 28 (Tex. App.—
Houston [1st Dist.] 2013, no pet.) ................................................................................................... 5
STATUTES
TEX. CODE CRIM. PROC. ANN.
art. 102.011 (West 2013) ............................................................................................................... 4, 5
TEX. CODE CRIM. PROC. ANN.
art. 102.011(a)(1) (West 2013)......................................................................................................... 4
TEX. CODE CRIM. PROC. ANN.
art. 102.011(a)(6) (West 2013) .................................................................................................... 4, 5
TEX. CODE CRIM. PROC. ANN.
art. 103.008 (West 2013) ................................................................................................................... 6
TEX. LOCAL GOV’T CODE ANN.
§133.102(a)(1) (West 2013) ...............................................................................................................2
TEX. LOCAL GOV’T CODE ANN.
§133.102(e) (West 2013) ......................................................................................................................... 3
TO THE HONORABLE COURT OF APPEALS:
PROCEDURAL HISTORY
Appellant was charged by indictment with the offense of aggravated sexual
assault. (CR 14). The jury found appellant guilty of the lesser offense of sexual
assault. (CR 154). The jury sentenced appellant to 15 years confinement in the
Institutional Division of the Texas Department of Criminal Justice. (CR 167, 170).
Appellant filed a motion for new trial and on appeal alleged only errors
regarding his court costs, specifically attacking the $133 consolidated court cost
and a $15 sheriff’s fee. (RR MNT 1-15). This Court overruled his court costs
claims in a published opinion on September 29, 2015. See Penright v. State, No. 01-12-
00647-CR, 2015 WL 5770006 (Tex. App.—Houston [1st Dist.] Sept. 29, 2015 no
pet. h.).
Appellant filed a motion for rehearing en banc claiming the Court of
Appeals erred in their analysis. The Court then ordered the State to respond.
♦
REPLY TO APPELLANT’S MOTION FOR REHEARING
In two grounds for rehearing, appellant complains this Court erred by
holding the consolidated court cost was constitutional and finding the bill of costs
supported the sheriff’s fee.
Costs of Court
The initial judgment in this case reflects an assessment of court costs in the
amount of $534; a second judgment reflects court costs in the amount of $484,
which includes a $133 consolidated court cost and a $15 sheriff’s fee. (CR 170, 173).
An initial bill of costs was filed, and then a supplemental bill of cost was filed.
(CR 192-193, 194-195).
Consolidated Court Cost
Both the Texas Code of Criminal Procedure and the Texas Local
Government Code contain provisions authorizing court costs in criminal cases.
Section 133.102(a) of the Local Government Code authorizes a court cost in the
amount of $133 when a person is convicted of a felony offense. See TEX. LOCAL
GOV’T CODE ANN. §133.102(a)(1) (West 2013). Appellant’s court costs include the
fee for $133, and he challenged the constitutionality of that fee, complaining it was
essentially a tax. This Court properly overruled his claim.
On rehearing, he complains this Court erred by failing to explain how the
comprehensive rehabilitation fund contained in the consolidated court cost was a
legitimate court cost and failed to consider each fund individually. But this is not
required. The Court of Criminal Appeals recently held that requiring evidence of
what the designated funds actually do is improper in a facial challenge to the
statute. Salinas v. State, 464 S.W.3d 363, 368 (Tex. Crim. App. 2015).
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Further, the Court of Criminal Appeals decided Peraza, reiterating under a
facial constitutional challenge, courts consider the statute only as it is written,
rather than how is operates in practice. See Peraza v. State, 467 S.W.3d 508, 515
(Tex. Crim. App. 2015) (DNA record fee is not an unconstitutional tax). The
defendant in Peraza similarly 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. Id. Disagreeing
with this Court’s lower opinion, 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 unconstitutionally; rather, a statute is
facially unconstitutional “only if it ‘always operates unconstitutionally in all
possible circumstances.’” Id. at 516 (quoting State v. Rosseau, 396 S.W3d 550, 556
(Tex. Crim. App. 2013)).
The Peraza Court set forth a new test, and going forward the question 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.” Peraza, 467 S.W.3d at 517. Under subsection (e) of
Section 133.102, every single fund or account can be labeled as a “legitimate
criminal justice purpose” “related to the administration of our criminal justice
system.” See TEX. LOCAL GOV’T CODE ANN. §133.102(e) (West 2013). This includes
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the comprehensive rehabilitation fund. Clearly, rehabilitation is a legitimate
criminal justice purpose. See Penright, 2015 WL 5770006 at *4. To argue otherwise
defies common sense. Appellant’s focus 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, 464 S.W.3d at 368. Appellant has incorrectly
asserted it is this Court’s duty to assess each fund, rather than his burden to
demonstrate the statute operates unconstitutionally in all circumstances.
Sheriff’s Fee
Appellant was initially assessed a $65 sheriff’s fee, which was later
corrected to reflect the accurate amount of $15; this explains why his total court
costs were lowered by $50, from $ 534 to $484. (CR 170, 173, 192-193, 194-195).
The $15 sheriff’s fee is derived from the court costs set out in the Texas Code
of Criminal Procedure. Article 102.011 outlines several fees that may be assessed
for the services of a police officer. TEX. CODE CRIM. PROC. ANN. art. 102.011 (West
2013). Article 102.011(a)(1) sets out that a defendant convicted of a felony shall pay
a $5 fee when an officer makes an arrest without a warrant. TEX. CODE CRIM.
PROC. ANN. art. 102.011(a)(1) (West 2013). Article 102.011(a)(6) sets out that a
defendant convicted of a felony shall pay $5 for commitment or release. TEX. CODE
CRIM. PROC. ANN. art. 102.011(a)(6) (West 2013).
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The record demonstrates that appellant was arrested without a warrant on
January 14, 2010, supporting the $5 fee for arrest without a warrant under Article
102.011(a)(1). (CR 3). See TEX. CODE CRIM. PROC. ANN. art. 102.011 (West 2013).
The record also demonstrates that appellant was committed to the Harris County
Jail, pending trial, which supports one $5 fee under Article 102.011(a)(6), and then
he was committed to TDCJ after his conviction, supporting a second $5 fee for
commitment. (CR 3, 173-174). See TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(6)
(West 2013). Thus, the record supports his $15 sheriff’s fee. See Thomas v. State, 445
S.W.3d 28 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (factual evidence in the
record can support an assessment of a sheriff’s fee – in this case, $5 for
commitment and $5 for release).
On rehearing, appellant argues that because he presented evidence at the
hearing on his motion for new trial disputing these fees, this Court erred by
overruling his point of error.
First, contrary to his assertion, appellant did not present factual evidence
disputing the sheriff’s fees. He presented an affidavit from a custodian of records
at the Harris County Sheriff’s Office (HCSO) that indicated they do not create
records that are a statement of each cost charged in a criminal action. (RR MNT 5;
MNT Defense Exhibit Number 6). Appellant seems to parlay this fact into a
5
smoking gun that he doesn’t owe the fees. But failing to keep a record is not
evidence the fee was never owed.
Second, appellant conceded at the hearing on the motion for new trial that
the proper vehicle to challenge errors in court costs is through Article 103.008.
(RR MNT 12). See Cardenas v. State, 423 S.W.3d 396 (Tex. Crim. App. 2014); TEX.
CODE CRIM. PROC. ANN. art. 103.008 (West 2013) (on the filing of a motion by a
defendant not later than one year after the date of the final disposition of a case in
which costs were imposed, the court in which the case is pending or was last
pending shall correct any error in the costs).
The trial court was authorized to assess the sheriff’s fee of $15; the record in
this case supports this Court’s conclusion.
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CONCLUSION
The Court’s opinion in this case is solid. And more importantly, consistent
with recent decisions by the Court of Criminal Appeals. There is no valid reason
to entertain appellant’s motion for rehearing. To date, this case has been pending
for over 5 years, including an abatement for defense counsel to further explore
court cost issues in a motion for new trial. See Hearne v. State, 415 S.W.3d 365, 368-
370 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (Keyes, J., concurring)
(expressing frustration with repeated court costs claims on appeal when there is
now settled authority on the issue, and without any regard to the merits of the
defendant’s case on appeal – conviction or punishment).
The State respectfully requests this Court deny appellant’s motion for
rehearing en banc.
DEVON ANDERSON
District Attorney
Harris County, Texas
Jessica Akins
JESSICA AKINS
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 274-5826
State Bar Number: 24029415
akins_jessica@dao.hctx.net
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CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument has been sent to
appellant’s attorney at the following address on November 10, 2015:
Jani Maselli
Assistant Public Defender
Harris County, Texas
1201 Franklin, 13th Floor
Houston, Texas 77002
jani.maselli@pdo.hctx.net
Jessica Akins
JESSICA AKINS
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 274-5826
State Bar Number: 24029415
akins_jessica@dao.hctx.net
CERTIFICATE OF COMPLIANCE
This is to certify that this computer-generated document has a word count
of 1777 words, based upon the representation provided by the word processing
program that was used to create the document.
Jessica Akins
JESSICA AKINS
Assistant District Attorney
Harris County, Texas
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