Ruben Lee Allen v. State

Opinion issued November 28, 2017

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-16-00768-CR
———————————
RUBEN LEE ALLEN, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court
Harris County, Texas
Trial Court Case No. 1487627

OPINION

A jury found appellant, Ruben Lee Allen, guilty of the offense of aggravated

robbery with a deadly weapon.1 After finding true the allegation in an enhancement

1
See TEX. PENAL CODE ANN. § 29.03(a)(2) (Vernon 2011).
paragraph that he had previously been convicted of a felony offense, the jury

assessed his punishment at confinement for twenty-five years. In two issues,

appellant contends that the trial court lacked jurisdiction over this case and the $200

“Summoning Witness/Mileage” fee2 assessed against him is unconstitutional.

We modify the trial court’s judgment and affirm as modified.

Background

Kannan Rajan, the complainant, testified that as the pharmacist at the BZ

Pharmacy in Harris County, Texas, he was responsible for handling the money in

the pharmacy’s cash register, the prescription medications, and other property of the

pharmacy. On September 11, 2015, while his assistant technician was on break and

he was alone in the pharmacy, the complainant went to the restroom. When he came

out, a black man, standing at the restroom’s door, pointed a firearm at his head. The

man told the complainant to “look down” and open the pharmacy’s safe, which

contained paperwork, certain narcotic medications, and money. The complainant

did not see the face of the man with the firearm, but he saw the firearm and feared

that he would die. The complainant noted that the man had two other people with

him, but he was unable to see their faces because they were wearing hoods. After

2
See TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(3), (b) (Vernon Supp. 2016)
(imposing $5 charge on defendant convicted of felony “for summoning [each]
witness” and requiring defendant to pay “29 cents per mile for mileage required of
an officer to perform a service . . . and to return from performing that service”).

2
the complainant opened the pharmacy’s safe, he laid down on the floor, while the

man with the firearm “took some things from the safe” and asked the complainant

for hydrocodone. Before leaving the pharmacy, the man took “some hydrocodone”

and approximately $1,000 from the pharmacy’s cash register.

While watching the pharmacy’s surveillance videotape, admitted into

evidence at trial as State’s Exhibit 4, the complainant explained that the videotape

shows a silver truck driving into the pharmacy’s parking lot and parking close to the

pharmacy. Although one person remained in the truck, three other people exited the

truck and entered the pharmacy. Two of the people who got out of the truck wore

“hoodies pulled over their heads,” and a third man wore a black shirt and white pants.

The videotape next shows the three people entering the pharmacy and the man with

the black shirt and white pants standing next to the restroom. As the complainant

exits the restroom, the man with the black shirt and white pants “[p]ut[s] [a] gun” to

the complainant’s head, and the complainant, as instructed, “look[s] down” and

“g[ets] down on [his] knees.” After the complainant opens the pharmacy’s safe, the

man with the black shirt and white pants takes from out of the safe a white object,

which he then carries into the pharmacy’s “prescription medication area” and leaves

on the floor of the pharmacy.

Houston Police Department Officer O. Baldwin testified that while on duty

on September 11, 2015, he was dispatched to investigate the aggravated robbery.

3
Upon arriving at the BZ Pharmacy, Baldwin spoke to the complainant who told him

that “three black males with ski masks on came into [the] shop and pulled a gun on

him and got him out of the restroom.” One of the men then “took him to the

[pharmacy’s] safe,” “made him open [it],” and “get . . . stuff out.” Baldwin noted

that he viewed the pharmacy’s surveillance videotape, State’s Exhibit 4, which

shows a man wearing a black shirt and white pants holding a firearm and “grabb[ing]

a [white] bag out of the [pharmacy’s] safe.” The man then leaves the white bag on

the floor of the pharmacy. Baldwin noted that he collected the white bag, admitted

into evidence at trial as State’s Exhibit 7, from the floor of the pharmacy.

Laurissa Pilkington, a latent print technician for the Houston Forensic Science

Center (“HFSC”), testified that she tested three items related to the case, including

State’s Exhibit 7, the white bag found on the pharmacy’s floor. From the white bag,

Pilkington recovered two latent fingerprints.

Darren Jewkes, a senior latent fingerprint examiner for HFSC, testified that

he analyzed the two latent fingerprints that Pilkington had recovered from State’s

Exhibit 7, the white bag. He opined that the first fingerprint “corresponds to the

right middle finger” of appellant, and the second fingerprint “belong[s] to the right

ring finger” of appellant. In other words, the “two latent [finger]prints” recovered

from the white bag “belonged to” appellant.

4
 After finding appellant guilty of the offense of aggravated robbery with a

deadly weapon, and finding true the allegation in an enhancement paragraph that he

had previously been convicted of a felony offense, the jury assessed appellant’s

punishment at confinement for twenty-five years. In the judgment of conviction, the

trial court ordered appellant to pay court costs, “[a]s [a]ssessed,” which included a

$200 charge for “Summoning Witness/Mileage.”3

Jurisdiction

In his first issue, appellant argues that the trial court, the 337th District Court

of Harris County, Texas, lacked jurisdiction over this case because the underlying

indictment was presented to the grand jury of the 230th District Court of Harris,

County, Texas. The State asserts that appellant waived his complaint by not first

raising this procedural matter in the trial court.

The Texas Code of Criminal Procedure sets forth the organization and duties

of a grand jury. See TEX. CODE CRIM. PROC. ANN. arts. 19.01–20.22 (Vernon 2015

& Supp. 2016). A trial court forms, impanels, and empowers a grand jury to inquire

into indictable offenses, including aggravated robbery with a deadly weapon. See

TEX. CODE CRIM. PROC. ANN. art. 20.09 (“The grand jury shall inquire into all

offenses liable to indictment of which any member may have knowledge, or of which

they shall be informed by the attorney representing the State, or any other credible

3
See id.

5
person.”); Ex parte Edone, 740 S.W.2d 446, 448 (Tex. Crim. App. 1987) (“Once

formed and impaneled by the district judge, the grand jury shall inquire into all

offenses liable to indictment” (internal quotations omitted)); Davis v. State, 519

S.W.3d 251, 254 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d); Bourque v. State,

156 S.W.3d 675, 678 (Tex. App.—Dallas 2005, pet. ref’d). Because a grand jury’s

deliberations are secret, it retains a “separate and independent nature from the court.”

Ex parte Edone, 740 S.W.2d at 448.

After hearing testimony, a grand jury then votes concerning the presentment

of an indictment.4 See TEX. CODE CRIM. PROC. ANN. art. 20.19 (“After all the

testimony which is accessible to the grand jury shall have been given in respect to

any criminal accusation, the vote shall be taken as to the presentment of an

indictment . . . .”); Ex parte Edone, 740 S.W.2d at 448; Davis, 519 S.W.3d at 254;

Bourque, 156 S.W.3d at 678 (grand jury “hears all the testimony available before

voting on whether to indict the accused”).

“[I]f nine members concur in finding the bill,” the State prepares the

indictment and the grand jury foreman signs it and delivers it to the judge or the

clerk of the court. TEX. CODE CRIM. PROC. ANN. arts. 20.19–.21; Bourque, 156

4
An indictment is “a written instrument presented to a court by a grand jury charging
a person with the commission of an offense.” TEX. CONST. art. V, § 12(b); see also
TEX. CODE CRIM. PROC. ANN. art. 21.02 (Vernon 2009) (setting out requirements
of indictment).

6
S.W.3d at 678. An indictment is considered “‘presented’ when it has been duly acted

upon by the grand jury and received by the court.” TEX. CODE CRIM. PROC. ANN.

art. 12.06 (Vernon 2015); see also Henderson v. State, 526 S.W.3d 818, 819 (Tex.

App.—Houston [1st Dist.] 2017, pet. ref’d). Thus, presentment occurs when an

indictment is delivered to either the judge or the clerk of the court. TEX. CODE CRIM.

PROC. ANN. art. 20.21; State v. Dotson, 224 S.W.3d 199, 204 (Tex. Crim. App.

2007).

The district clerk for each county “is the clerk of the court for all the district

courts in that county.” Henderson, 526 S.W.3d at 820 (quoting Ex parte Alexander,

861 S.W.2d 921, 922 (Tex. Crim. App. 1993), superseded by statute on other

grounds as stated in Ex parte Burgess, 152 S.W.3d 123, 124 (Tex. Crim. App.

2004)); Aguillon v. State, No. 14-17-00002-CR, 2017 WL 3045797, at *1 (Tex.

App.—Houston [14th Dist.] July 18, 2017, pet. ref’d) (mem. op., not designated for

publication). “The fact that a signed indictment features an original file stamp of the

district clerk’s office is strong evidence that a returned indictment was ‘presented’

to the court clerk within the meaning of Article 20.21.” Dotson, 224 S.W.3d at 204

(because indictment “bears an original file stamp, that fact convincingly shows the

presentment requirement was satisfied”). Once an indictment is presented,

jurisdiction vests with the trial court. TEX. CONST. art. V, § 12(b); Dotson, 224

S.W.3d at 204; Cook v. State, 902 S.W.2d 471, 476 (Tex. Crim. App. 1995).

7
 All state district courts within the same county have jurisdiction over the same

cases, and criminal district courts have original jurisdiction in felony criminal cases.

See TEX. CODE CRIM. PROC. ANN. art. 4.05 (Vernon 2015); TEX. GOV’T CODE ANN.

§ 74.094 (Vernon 2013); see also Aguillon, 2017 WL 3045797, at *2; Henderson,

526 S.W.3d at 820; Davis, 519 S.W.3d at 254. In counties having two or more

district courts, the judges of the courts “may adopt rules governing the filing and

numbering of cases, the assignment of cases for trial, and the distribution of the work

of the courts as in their discretion they consider necessary or desirable for the orderly

dispatch of the business of the courts.” TEX. GOV’T CODE ANN. § 24.024 (Vernon

Supp. 2016); see also TEX. GOV’T CODE ANN. § 74.093 (Vernon Supp. 2016)

(addressing adoption of local rules of administration to provide, in part, for

assignment, docketing, transfer, and hearing of all cases); Henderson, 526 S.W.3d

at 820; Aguillon, 2017 WL 3045797, at *2; Davis, 519 S.W.3d at 255.

Thus, in multi-court counties, such as Harris County, although a specific

district court may impanel a grand jury, it does not necessarily follow that all cases

considered by that court’s grand jury are assigned to that court. See Henderson, 526

S.W.3d at 820; Aguillon, 2017 WL 3045797, at *2; Shepherd v. State, No.

01-16-00748-CR, 2017 WL 2813165, at *1 (Tex. App.—Houston [1st Dist.] June

29, 2017, pet. ref’d) (mem. op., not designated for publication); Davis, 519 S.W.3d

at 255 (“If a grand jury in one district court returns an indictment in a case, the case

8
nevertheless may be then assigned to any district court within the same county.”);

Hernandez v. State, 327 S.W.3d 200, 204 (Tex. App.—San Antonio 2010, pet.

ref’d); Bourque, 156 S.W.3d at 678; see also Tamez v. State, 27 S.W.3d 668, 670

n.1 (Tex. App.—Waco 2000, pet. ref’d) (noting “the judges of the Harris County

district courts exercising criminal jurisdiction have adopted a procedure by which

indictments are filed in each court on a rotating basis without reference to the court

which empaneled the grand jury presenting the indictments”). In other words, one

court may impanel a grand jury, and if an indictment is presented, the case may be

filed in another court of competent jurisdiction within the same county. See

Aguillon, 2017 WL 3045797, at *2; Cannon v. State, Nos. 05-13-01109-CR,

05-13-01110-CR, 2014 WL 3056171, at *4 (Tex. App.—Dallas July 7, 2014, no

pet.) (mem. op., not designated for publication); Thornton v. State, Nos.

05-13-00610-CR, 05-13-00611-CR, 05-13-00612-CR, 2014 WL 2946457, at *3

(Tex. App.—Dallas May 6, 2014, no pet.) (mem. op., not designated for

publication).

The 230th and 337th District Courts are both criminal district courts in Harris

County, Texas. They both share the same clerk, i.e., the Harris County District

Clerk, and have original jurisdiction in felony criminal cases. On November 6, 2015,

the State filed in the 337th District Court a complaint, alleging that “on or about

September 11, 2015,” appellant “did then and there unlawfully[,] while in the course

9
of committing theft of property owned by [the complainant], and with intent to

obtain and maintain control of the property, intentionally and knowingly threaten

and place [the complainant] in fear of imminent bodily injury and death,” and

appellant “did then and there use and exhibit a deadly weapon, namely, a firearm.”

(Emphasis omitted.) On December 16, 2015, the grand jury returned a true bill of

indictment concerning the same conduct. See TEX. CONST. art. V, § 12(b); TEX.

CODE CRIM. PROC. ANN. art. 21.02 (setting out requirements of indictment); State v.

Smith, 957 S.W.2d 163, 164–65 (Tex. App.—Austin 1997, no pet.) (“The

constitutional requisites for an indictment . . . are satisfied by a written instrument

accusing a person of the commission of a criminal offense with enough clarity and

specificity to identify the penal statute under which the State intends to

prosecute . . . .”). That indictment was presented to the Harris County District Clerk,

as demonstrated by the clerk’s original file stamp, and filed in the 337th District

Court, the trial court where the State’s complaint was originally filed. See Shepherd,

2017 WL 2813165, at *1 (“After the grand jury votes concerning presentment of an

indictment, the State can file in any court that has jurisdiction over the case.”).

Here, there is further evidence in the record that the indictment was acted upon

by the grand jury and presented to, or received by, the 337th District Court. See

Henderson, 526 S.W.3d at 820. Specifically, the grand jury foreman signed the

indictment, the trial court directed the State to read the indictment to appellant in

10
open court prior to trial, and it accepted appellant’s plea of “not guilty.” See id.

(“Logically, [defendant]’s arraignment . . . could not have occurred in the 177th

District Court if the trial court had not actually received the indictment.”); Helsley

v. State, No. 07-15-00350-CR, 2017 WL 931707, at *1 (Tex. App.—Amarillo Mar.

8, 2017, pet. ref’d) (mem. op., not designated for publication); see also TEX. CODE

CRIM. PROC. ANN. art. 12.06 (stating presentment occurs when indictment “has been

duly acted upon by the grand jury and received by the court”). Thus, the 337th

District Court was properly vested with jurisdiction over appellant. See TEX. CODE

CRIM. PROC. ANN. arts. 4.05, 4.16 (Vernon 2015); see also Aguillon, 2017 WL

3045797, at *2 (although amended indictment signed by foreman of grand jury

impaneled by 177th District Court, 184th District Count had jurisdiction when

amended indictment refiled in 184th District Court, which had “first-filed related

case”); Helsley, 2017 WL 931707, at *2 (when “[e]vidence of ‘presentment’”

appears in record, “it is clear that the trial court had jurisdiction to try [defendant]

for the charges encompassed by the indictment”); Williams v. State, No.

06-14-00224-CR, 2015 WL 4071542, at *4 (Tex. App.—Texarkana July 6, 2015, no

pet.) (mem. op., not designated for publication) (although indictment presented by

grand jury impaneled by 291st District Court, record shows case first filed in 282nd

District Court, which obtained jurisdiction); Paz v. State, No. 05-14-01127-CR,

2015 WL 6386424, at *10 (Tex. App.—Dallas Oct. 22, 2015, no pet.) (mem. op.,

11
not designated for publication) (“Jurisdiction over felony cases, such as this case,

lies in the district court or criminal district court where the indictment is first filed.”).

Appellant argues that “[a] grand jury impaneled by one [trial] court cannot

present an indictment to a different [trial] court” because “a grand jury serves [one]

particular court.” However, this Court has expressly rejected this argument on at

least four previous occasions. See Henderson, 526 S.W.3d at 819–21 (rejecting

argument 177th District Court of Harris County, Texas never acquired jurisdiction

over defendant because grand jury from 182nd District Court of Harris County,

Texas presented indictment); Shepherd, 2017 WL 2813165, at *1; Hernandez v.

State, No. 01-15-00837-CR, 2017 WL 1416877, at *2 (Tex. App.—Houston [1st

Dist.] Apr. 20, 2017, pet. ref’d) (mem. op., not designated for publication)

(defendant argued trial court, 263rd District Court of Harris County, Texas, lacked

jurisdiction because grand jury of different court, 184th District Court of Harris

County, presented indictment); Davis, 519 S.W.3d at 254–56 (rejecting argument

184th District Court of Harris County, Texas did not acquire jurisdiction over

defendant because grand jury from 178th District Court of Harris County, Texas

presented indictment). And we have repeatedly held that a trial court is not deprived

of jurisdiction over a criminal defendant in circumstances such as those presented in

the instant case. See, e.g., Henderson, 526 S.W.3d at 819–21; Shepherd, 2017 WL

12
2813165, at *1; Hernandez, 2017 WL 1416877, at *2; Davis, 519 S.W.3d at 254–

56.

Further, we have previously explained that, at best, appellant’s arguments

present a procedural issue related to his indictment. See Henderson, 526 S.W.3d at

821; Shepherd, 2017 WL 2813165, at *1; Hernandez, 2017 WL 1416877, at *2;

Davis, 519 S.W.3d at 254–56. And although a jurisdictional defect in an indictment

may be challenged for the first time on appeal, a procedural deficiency in regard to

an indictment may not. See Cook, 902 S.W.3d at 480; Henderson, 526 S.W.3d at

821; Hernandez, 2017 WL 1416877, at *2; Davis, 519 S.W.3d at 256; see also

Mosley v. State, 354 S.W.2d 391, 393–94 (Tex. Crim. App. 1962); Lemasurier v.

State, 91 S.W.3d 897, 899–900 (Tex. App.—Fort Worth 2002, pet. ref’d) (holding

defendant waived error regarding procedural deficiency with indictment by failing

to timely file plea to jurisdiction); Tamez, 27 S.W.3d at 670–71 (holding defendant

waived appellate complaint indictment filed in district court other than district court

which impaneled grand jury because such defect “concern[ed] a procedural

irregularity which [the defendant] should have raised in a pre-trial motion”). Here,

appellant did not object to the indictment or the proceedings in the trial court.

Accordingly, we hold that the trial court had jurisdiction over this case and

appellant’s failure to object to the indictment or the proceedings in the trial court

prior to trial constitutes a waiver of his right to challenge any procedural irregularity

13
related to his indictment on appeal. See Henderson, 526 S.W.3d at 819–21;

Hernandez, 2017 WL 1416877, at *2.

We overrule appellant’s first issue.

“Summoning Witness/Mileage” Fee

In his second issue, appellant argues that the $200 “Summoning

Witness/Mileage” fee5 assessed against him, an indigent criminal defendant, by the

trial court is (1) facially unconstitutional because it violates the Separation of Powers

clause of the Texas Constitution and (2) unconstitutional as applied to him because

it violates his constitutional rights to compulsory process and confrontation.6 See

U.S. CONST. amend. VI; TEX. CONST. art. I, § 10 (rights to compulsory process and

confrontation), TEX. CONST. art. II, § 1 (separation of powers); see also TEX. CODE

CRIM. PROC. ANN. art. 1.05 (Vernon 2005).

We review the constitutionality of a criminal statute de novo as a question of

law. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013); Maloney v. State, 294

5
See TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(3), (b) (imposing $5 charge on
defendant convicted of felony “for summoning [each] witness” and requiring
defendant to pay “29 cents per mile for mileage required of an officer to perform a
service . . . and to return from performing that service”).
6
Although the State does not challenge appellant’s preservation of his second issue
for appeal, we note that a defendant may challenge the imposition of mandatory
court costs for the first time on direct appeal when those costs are not imposed in
open court and the judgment does not contain an itemization of the imposed court
costs. See London v. State, 490 S.W.3d 503, 506–07 (Tex. Crim. App. 2016); see
also Johnson v. State, 423 S.W.3d 385, 390–91 (Tex. Crim. App. 2014); Casas v.
State, 524 S.W.3d 921, 925 (Tex. App.—Fort Worth 2017, no pet.).

14
S.W.3d 613, 626 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). When presented

with a challenge to the constitutionality of a statute, we presume that the statute is

valid and the legislature has not acted unreasonably or arbitrarily. Rodriguez v.

State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002); Maloney, 294 S.W.3d at 626. The

party challenging the statute has the burden to establish its unconstitutionality.

Rodriguez, 93 S.W.3d at 69; Maloney, 294 S.W.3d at 626. We must uphold the

statute if we can apply a reasonable construction that will render it constitutional.

Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. [Panel Op.] 1979); see also

Maloney, 294 S.W.3d at 626 (if statute can be interpreted in two different ways, one

of which sustains its validity, we apply interpretation sustaining its validity).

“A facial challenge to a statute is the most difficult challenge to mount

successfully” because it is an attack on the statute itself, rather than a particular

application of it. Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992);

Toledo v. State, 519 S.W.3d 273, 279 (Tex. App.—Houston [1st Dist.] 2017, pet.

ref’d). To prevail on a facial challenge to a statute, the challenging party must

establish that no set of circumstances exists under which the statute would be

constitutionally valid. State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App.

2013); see also Horhn v. State, 481 S.W.3d 363, 372 (Tex. App.—Houston [1st

Dist.] 2015, pet. ref’d).

15
 Appellant argues that the $200 “Summoning Witness/Mileage” fee assessed

against him, an indigent criminal defendant, by the trial court, violates the Separation

of Powers clause of the Texas Constitution and constitutes an impermissible tax

collected by the judiciary because “the funds” received for the fee are “not directed

by statute to be used for a criminal justice purpose.” Instead, “the funds” are

“directed towards the general revenue fund of the county” “in which the convicting

court is located.”

Article II, section 1, of the Texas Constitution provides:

The powers of the Government of the State of Texas shall be divided
into three distinct departments, each of which shall be confided to a
separate body of magistracy, to wit: Those which are Legislative to
one; those which are Executive to another, and those which are Judicial
to another; and no person, or collection of persons, being of one of these
departments, shall exercise any power properly attached to either of the
others, except in the instances herein expressly permitted.

TEX. CONST. art. II, § 1; see also Meshell v. State, 739 S.W.2d 246, 252 (Tex. Crim.

App. 1987) (“[This] single, tersely phrased paragraph, provides that the

constitutional division of the government into three departments (Legislative,

Executive and Judicial) shall remain intact, ‘except in the instances herein expressly

permitted.’” (quoting TEX. CONST. art. II, § 1)). “This division ensures that [the]

power granted [to] one branch may be exercised by only that branch, to the exclusion

of the others.” Ex parte Lo, 424 S.W.3d at 28; see also Gen. Servs. Comm’n v.

Little-Tex Insulation Co., 39 S.W.3d 591, 600 (Tex. 2001) (“The

16
separation-of-powers doctrine prohibits one branch of government from exercising

a power inherently belonging to another branch.”); Meshell, 739 S.W.2d at 252

(“[A]ny attempt by one department of government to interfere with the powers of

another is null and void.” (internal quotations omitted)).

The Separation of Powers clause is violated “when one branch of government

assumes or is delegated a power more properly attached to another branch.” Ex parte

Lo, 424 S.W.3d at 28 (internal quotations omitted); see also Salinas v. State, 523

S.W.3d 103, 106–07 (Tex. Crim. App. 2017); Hernandez v. State, No.

01-16-000755-CR, --- S.W.3d ---, 2017 WL 3429414, at *6 (Tex. App.—Houston

[1st Dist.] Aug. 10, 2017, no pet. h.). Relevant to the instant case, a court is delegated

a power more properly attached to the executive branch, rather than to the judiciary,

where a statute turns the court into a “tax gatherer[]”; however, the collection of fees

by a court in a criminal case constitutes a judicial function where “the statute under

which [the] court costs are assessed (or an interconnected statute) provides for an

allocation of such court costs to be expended for [a] legitimate criminal justice

purpose[].” Salinas, 523 S.W.3d at 107, 109 n.26 (quoting Peraza v. State, 467

S.W.3d 508, 517 (Tex. Crim. App. 2015)) (explaining “[t]he issue is whether the fee

in question is a court cost (which is allowed) or a tax (which is unconstitutional)”);

Hernandez, 2017 WL 3429414, at *6; see also Casas v. State, 524 S.W.3d 921, 925–

27 (Tex. App.—Fort Worth 2017, no pet.) (“Although courts may not operate as tax

17
gatherers, which is a function reserved to the executive branch of government, courts

may collect fees in criminal cases as part of its judicial function if the statute under

which court costs are assessed (or an interconnected statute) provides for an

allocation of such costs to be expended for legitimate criminal justice purposes.”

(internal quotations omitted)).

“What constitutes a legitimate criminal justice purpose is a question to be

answered on a statute-by-statute/case-by-case basis.” Salinas, 523 S.W.3d at 107;

see also Peraza, 467 S.W.3d at 518. “And the answer to that question is determined

by what [a] governing statute says about the intended use of the funds, not whether

[the] funds are actually used for a criminal justice purpose.” Salinas, 523 S.W.3d at

107, 109 n.26; see also Casas, 524 S.W.3d at 926. In other words, the relevant

statute must direct “that the funds be used for something that is a legitimate criminal

justice purpose; it is not enough that some of the funds may ultimately benefit

someone who has some connection with the criminal justice system.” Salinas, 523

S.W.3d at 109 n.26.

As the Texas Court of Criminal Appeals has noted, “[w]hen a defendant is

convicted in a criminal case, various statutes require [him to] pay[] [certain] fees as

court costs.” Salinas, 523 S.W.3d at 105. Article 102.011(a)(3) and (b) require a

defendant “convicted of a felony or misdemeanor” to pay fees for certain services

“performed . . . by a peace officer,” including “$5 for summoning [each] witness”

18
and “29 cents per mile for mileage required of an officer to perform [the]

service . . . and to return from performing that service.” TEX. CODE CRIM. PROC.

ANN. art. 102.011(a)(3), (b) (Vernon Supp. 2016).

In Salinas, the court of criminal appeals recently held that Local Government

Code section 133.102, which requires a person convicted of a criminal offense to

pay a “Consolidated Court Cost” fee,7 violates the Separation of Powers clause of

the Texas Constitution to the extent that it allocates funds received from the fee to

the “abused children’s counseling” account.8 523 S.W.3d at 105, 109–110 & n.26

(internal quotations omitted). In doing so, the court explained that the funds received

7
See TEX. LOCAL GOV’T CODE ANN. § 133.102(a) (Vernon Supp. 2016) (“A person
convicted of an offense shall pay as a court cost, in addition to all other costs:
(1) $133 on conviction of a felony; (2) $83 on conviction of a Class A or B
misdemeanor; or (3) $40 on conviction of a nonjailable misdemeanor offense,
including a criminal violation of a municipal ordinance, other than a conviction of
an offense relating to a pedestrian or the parking of a motor vehicle.”); see also
Salinas v. State, 523 S.W.3d 103, 105 (Tex. Crim. App. 2017) (under section
133.102, “the defendant pays a single fee, but the money from that fee is divided up
among a variety of different state government accounts according to percentages
dictated by the statute”).
8
The court also held that section 133.102 is unconstitutional to the extent that it
allocates funds received from the fee to the “[c]omprehensive [r]ehabilitation”
account because such funds serve “[n]o criminal justice purpose.” Salinas, 523
S.W.3d at 107–08 (internal quotations omitted). Since Salinas, the court of criminal
appeals has repeatedly held that the portions of the “Consolidated Court Cost” fee
that allocates funds received from the fee to the “abused children’s counsel” account
and the “comprehensive rehabilitation” account are unconstitutional. See Johnson
v. State, No. PD-1254-15, --- S.W.3d ---, 2017 WL 4414026, at *1 (Tex. Crim. App.
Oct. 4, 2017); Davis v. State, No. PD-1314-15, 2017 WL 4410265, at *1 (Tex. Crim.
App. Oct. 4, 2017); Guerrero v. State, Nos. PD-0665-15, PD-0666-15, 2017 WL
4410256, at *1 (Tex. Crim. App. Oct. 4, 2017); Penright v. State, --- S.W.3d ---,
2017 WL 4169069, at *1 (Tex. Crim. App. Sept. 20, 2017).

19
from the “Consolidated Court Cost” fee that are allocated to the “abused children’s

counseling” account are actually “deposited in the [State’s] General Revenue Fund.”

Id. at 110 (internal quotations omitted). Accordingly, the court concluded:

We cannot uphold the constitutionality of funding [the “abused
children’s counseling”] account through court costs on the basis of its
name or its former use when all the funds in the account go to general
revenue. Consequently, the allocation of funds to the “abused
children’s counseling” account does not currently qualify as an
allocation of funds “to be expended for legitimate criminal justice
purposes.” To the extent that § 133.102 allocates funds to the “abused
children’s counseling” account, it is facially unconstitutional in
violation of the Separation of Powers provision of the Texas
Constitution.

Id. at 110 (emphasis added). Essentially, the court of criminal appeals explained

that there are “limits” to the types of fees that the legislature “c[an] require the courts

to collect” and “it is [simply] not enough that some of the funds [received from the

“Consolidated Court Cost” fee] may ultimately benefit someone who has some

connection with the criminal justice system.” Id. at 109 n.26.

Recently, this Court, relying on the court of criminal appeals’ decision in

Salinas, addressed the issue of whether the $25 “[P]rosecutor’s fee” assessed against

a defendant, pursuant to Texas Code of Criminal Procedure article 102.008(a), is

unconstitutional because it violates the Separation of Powers clause of the Texas

Constitution. See Hernandez, 2017 WL 3429414, at *6–7. In doing so, we explained

that article 102.008(a) requires “a defendant convicted of a misdemeanor” to pay “a

fee of $25 for the trying of [his] case by the district or county attorney.” Id. at *6
20
(quoting TEX. CODE CRIM. PROC. ANN. art. 102.008(a) (Vernon 2006)). However,

“[t]he statute does not [actually] state where the [funds from the] $25 [Prosecutor’s]

fee [are] to be directed.” Id.

Instead, the Office of Court Administration’s website shows that “100% of

the money collected” from the “[P]rosecutor’s fee” remains “with the [c]ounty (or

the [c]ity,” which the court serves, and “is directed to the [c]ounty’s (or [c]ity’s)

General Fund.” Id. at *6 (quoting Office of Court Administration, Study of the

Necessity of Certain Court Costs and Fees in Texas (Sept. 1, 2014), at 6–7 in

Criminal Court Costs Section (Fee No. 13, “Prosecutor’s Fee”),

http://www.txcourts.gov/media/495634/SB1908-Report-FINAL.pdf (purpose of

study, ordered by Senate Bill 1908, to “identif[y] each statutory law imposing a court

fee or costs in a court in this state” and “[d]etermine whether each identified fee or

cost is necessary to accomplish the stated statutory purpose”))9; see also Salinas,

523 S.W.3d at 110 (noting, based on Texas Comptroller’s website, funds collected

for “abused children’s counseling” fee “deposited in the [State’s] General Revenue

9
The study conduct by the Office of Court Administration identified several
concerns, including the fact that “some fees and costs [ordered to be collected from
criminal defendants] have no stated statutory purpose,” “court fees and costs
collected from [criminal defendants] are oftentimes used to fund programs outside
of and unrelated to the judiciary,” and “many court fees and costs are collected for
a purpose but [are] not dedicated or restricted to be used exclusively for that
intended purpose.” See Office of Court Administration, Study of the Necessity of
Certain Court Costs and Fees in Texas (Sept. 1, 2014), at 2,
http://www.txcourts.gov/media/495634/SB1908-Report-FINAL.pdf.

21
Fund”). “Money in a county’s [or city’s] general fund can be spent for ‘any proper

county [or city] purpose.’” Hernandez, 2017 WL 3429414, at *6 (quoting Tex. Att’y

Gen. Op. No. JM-530 (1986)).

Thus, relying on Salinas, we explained that “the constitutional infirmity” in

Hernandez was article 102.008(a)’s “failure to direct the funds [received from the

“[P]rosecutor’s fee”] to be used in a manner that would make [the fee] a court cost

(i.e., for something that is a criminal justice purpose).” Id. at *7 (quoting Salinas,

523 S.W.3d at 109 n.26). And article 102.008(a) “operates unconstitutionally every

time the fee is collected, making the statute unconstitutional on its face.” Id. (quoting

Salinas, 523 S.W.3d at 109 n.26). Further, we noted that although “some of the

money collected” from the “[P]rosecutor’s fee” “may ultimately be spent on

something that would be a legitimate criminal justice purpose,” this “is not sufficient

to create a constitutional application of the statute because the actual spending of the

money is not what makes a fee a court cost.” Id. (quoting Salinas, 523 S.W.3d at

109 n.26).

Accordingly, we concluded that article 102.008(a) does not direct the funds

from the $25 “[P]rosecutor’s fee” to be expended for a criminal justice purpose. Id.

And we held that article 102.008(a) is unconstitutional because “it allocates funds to

the . . . general fund” of the county that the court serves, thereby allowing such funds

to be spent “for purposes other than legitimate criminal justice purposes in violation

22
of the [S]eparation of [P]owers [clause] of the Texas Constitution.” Id.; see also

Salinas, 523 S.W.3d at 109–10 (“We cannot uphold the constitutionality of funding

th[e] [“abused children’s counseling” account . . . when all the funds in the account

go to [the State’s] general revenue.”); Peraza, 467 S.W.3d at 518 n.17 (agreeing

“court costs should [generally] relate to the recoupment of judicial resources”);

Casas, 524 S.W.3d at 925–27 (holding Code of Criminal Procedure article 102.0185

unconstitutional where “monies collected” from “emergency-services cost”

allocated to general revenue fund); Tex. Att’y Gen. Op. No. JC-0158 (1999) (“Court

fees that are used for general purposes are characterized as taxes, and a tax imposed

on a litigant . . . violat[es] . . . the constitution.”). Accordingly, we modified the trial

court’s judgment to delete the $25 “[P]rosecutor’s fee” from the costs assessed

against the defendant. Hernandez, 2017 WL 3429414, at *7.

Although, in the instant case, we do not address the constitutionality of the

“[P]rosecutor’s fee,” we must determine whether the “Summoning

Witness/Mileage” fee assessed against criminal defendants, including appellant,

pursuant to Texas Code of Criminal Procedure article 102.011(a)(3) and (b), is

facially unconstitutional because it violates the Separation of Powers clause of the

Texas Constitution. See TEX. CONST. art. II, § 1. And the rationale utilized by this

Court in Hernandez and by the court of criminal appeals in Salinas applies.

23
 As we noted in Hernandez, although article 102.011(a)(3) and (b) require a

defendant “convicted of a felony or misdemeanor” to pay fees for certain services

“performed . . . by a peace officer,” including “$5 for summoning [each] witness”

and “29 cents per mile for mileage required of an officer to perform [the]

service . . . and to return from performing that service,” “[t]he statute does not

[actually] state where the [funds received from the] fee [are] to be directed.” See

TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(3), (b); Hernandez, 2017 WL

3429414, at *6.

Instead, the Office of Court Administration’s website shows that, in regard to

article 102.011(a)(3) and (b), “100% of the money” collected from the “Summoning

Witness/Mileage” fee, including appellant’s money, remains “with the county or city

which the [c]ourt serves” and is directed to that county’s or city’s “General Fund.”

See Office of Court Administration, Study of the Necessity of Certain Court Costs

and Fees in Texas (Sept. 1, 2014), at 12, 51 in Criminal Court Costs Section (Fee

No. 26, “Peace Officer Fee – Summoning a Witness”; Fee No. 118, “Peace Officer

Fee – Mileage”), http://www.txcourts.gov/media/495634/SB19

08-Report-FINAL.pdf. Further, the Office of Court Administration’s website

explains that if a “peace officer” is employed by the State then “the [c]ity or

[c]ounty,” which the court serves, “keeps 80% of the [“Summoning

Witness/Mileage”] fee,” which is then “direct[ed] . . . to the [c]ounty’s (or [c]ity’s)

24
General Fund,” while “[t]he [remaining] 20% of the money [collected from the

“Summoning Witness/Mileage” fee] is sent to the State for deposit in the State’s

General Revenue Fund.” Id. And because the funds received from the “Summoning

Witness/Mileage” fee are “directed to the General Fund (at both the State and local

level),” they “need not be spent only on law enforcement [purposes].” Id.; see also

Hernandez, 2017 WL 3429414, at *6 (“Money in a county’s [or city’s] general fund

can be spent for ‘any proper county [or city] purpose.’” (quoting Tex. Att’y Gen.

Op. No. JM-530 (1986))); Casas, 524 S.W.3d at 925–27 (article 102.0185

unconstitutional where funds collected from “emergency-services cost” allocated to

general revenue fund); Tex. Att’y Gen. Op. No. JC-0158 (1999) (“Court fees that

are used for general purposes are characterized as taxes, and a tax imposed on a

litigant . . . violat[es] . . . the constitution.”).

Thus, in this case, as in Hernandez and Salinas, “the constitutional infirmity”

is article 102.011(a)(3) and (b)’s “failure to direct the funds [received from the

“Summoning Witness/Mileage” fee] to be used in a manner that would make [them]

a court cost (i.e., for something that is a criminal justice purpose).” Hernandez, 2017

WL 3429414, at *7 (quoting Salinas, 523 S.W.3d at 109 n.26); see also Peraza, 467

S.W.3d at 517 (“[I]f [a] statute under which court costs are assessed . . . provides for

an allocation of . . . court costs to be expended for legitimate criminal justice

purposes, then the statute allows for a constitutional application that will not render

25
the courts tax gatherers in violation of the [S]eparation of [P]owers clause.”);

Toomer v. State, No. 02-16-00058-CR, 2017 WL 4413146, at *3 (Tex. App.—Fort

Worth Oct. 5, 2017, no pet. h.) (mem. op.); Casas, 524 S.W.3d at 927 (because

“[n]either the statute authorizing the collection of the emergency-services cost nor

its attendant statutes direct the funds to be used for a legitimate, criminal-justice

purpose; . . . it is a tax that is facially unconstitutional”); Tex. Att’y Gen. Op. No.

JC-0158 (1999) (“Court fees that are used for general purposes are characterized as

taxes, and a tax imposed on a litigant . . . violat[es] . . . the constitution.”). And this

means that article 102.011(a)(3) and (b) operate unconstitutionally every time that

the “Summoning Witness/Mileage” fee is collected. See Salinas, 523 S.W.3d at 109

n.26; see also Hernandez, 2017 WL 3429414, at *7.

Further, even if “some of the money collected” from the “Summoning

Witness/Mileage” fee was “ultimately [to] be spent on something that would

[constitute] a legitimate criminal justice purpose,” this would not be “sufficient to

create a constitutional application of the statute because the actual spending of the

money is not what makes a fee a court cost.” Hernandez, 2017 WL 3429414, at *7

(quoting Salinas, 523 S.W.3d at 109 n.26).

We conclude, as we did in Hernandez, that article 102.011(a)(3) and (b) do

not direct the funds received from the “Summoning Witness/Mileage” fee to be

expended for a criminal justice purpose. Id.; see also Salinas, 523 S.W.3d at 109–

26
10; Peraza, 467 S.W.3d at 517 (“[I]f [a] statute under which court costs are

assessed . . . provides for an allocation of . . . court costs to be expended for

legitimate criminal justice purposes, then the statute allows for a constitutional

application that will not render the courts tax gatherers in violation of the

[S]eparation of [P]owers clause.”) Accordingly, we hold that article 102.011(a)(3)

and (b) are facially unconstitutional as they “allocate[] [the] funds” received from

the “Summoning Witness/Mileage” fee to the general revenue fund of either the

county or the State and allow such money to be spent “for purposes other than

legitimate criminal justice purposes in violation of the [S]eparation of [P]owers

[clause] of the Texas Constitution.” Hernandez, 2017 WL 3429414, at *7; see also

Salinas, 523 S.W.3d at 109–10 (“We cannot uphold the constitutionality of funding

th[e] [“abused children’s counseling”] account . . . when all the funds in the account

go to general revenue.”); Peraza, 467 S.W.3d at 518 n.17 (agreeing “court costs

should [generally] relate to the recoupment of judicial resources”). We modify the

trial court’s judgment to delete the $200 “Summoning Witness/Mileage” fee from

the assessed court costs. Hernandez, 2017 WL 3429414, at *7; see also Cates v.

State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013) (holding proper remedy when

trial court erroneously includes amounts as court costs is to modify judgment to

delete erroneous amounts).

27
 We sustain appellant’s second issue.10

Conclusion

We affirm the judgment as modified.

Terry Jennings
Justice

Panel consists of Justices Jennings, Bland, and Brown.

Publish. TEX. R. APP. P. 47.2(b).

10
Having held that article 102.011(a)(3) and (b) are facially unconstitutional in
violation of the Separation of Powers clause of the Texas Constitution, we need not
address appellant’s arguments that the $200 “Summoning Witness/Mileage” fee is
unconstitutional as applied to him because it violates his constitutional rights to
compulsory process and confrontation. See U.S. CONST. amend. VI; TEX. CONST.
art. I, § 10 (rights to compulsory process and confrontation); see also TEX. CODE
CRIM. PROC. ANN. art. 1.05 (Vernon 2005); TEX. R. APP. P. 47.1.

28