ACCEPTED
12-17-00255-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
12/1/2017 1:17 PM
Pam Estes
CLERK
FILED IN
SMITH COUNTY COURTHOUSE
100 N. BROADWAY 4th Floor
D. Matt Bingham 12thTELEPHONE:
COURT OF APPEALS
TYLER, TEXAS
TELECOPIER:
(903) 590-1720
(903) 590-1719
TYLER, TEXAS 75702 Criminal District Attorney 12/1/2017
Michael1:17:48 PM Chief
J. West, Appellate
April Allison Sikes, First Assistant
Smith County PAM ESTES
Jennifer Barfield, Office Director
Clerk
December 1, 2017
12th Court of Appeals
1517 West Front Street, ste. 354
Tyler, Texas 75702
Re: 12-17-00255-CR, Herring v. State - State’s Letter Brief.
To the Honorable Judges,
Appellant argues under a single point that his court costs in this case should be
reduced based upon a Court of Criminal Appeals' decision holding that two portions of
the Consolidated Court Cost fee were unconstitutional. See Salinas v. State, ___ S.W.3d
___, 2017 Tex. Crim. App. LEXIS 284, *11-16 (Tex. Crim. App. Mar. 8, 2017). The
Court in Salinas mandated that its holding would apply only:
(1) to defendants who raised the appropriate claim before March 8,
2017, the date that Salinas was decided, provided that the petition is
still pending; or
(2) prospectively, to trials that end after March 8, 2017.
Id. at 15.
The record shows that Appellant entered a plea of guilty and was convicted and
sentenced on August 11, 2017 - approximately four months after the opinion in Salinas
was issued. (1 CR: 67, 85). A total of $383.00 in court costs were made attendant to this
conviction. (1 CR: 85, 88). This total does not include the restitution ordered in the
amount of $180.00. (1 CR 85).
The Bill of Costs in the record shows that, as part of the total court costs,
Appellant was assessed $133.00 as a "Consolidated Court Cost fee" - parts of which
have now been found to be unconstitutional by the holding of Salinas. (1 CR: 88).
Specifically, the subsections of Tex. Local Gov't Code § 133.102 ordering payments
made for "abused children's counseling" and "comprehensive rehabilitation" constituted
a legislative overreach that serves no legitimate criminal justice purpose. Salinas, 2017
Tex. Crim. App. LEXIS 284 at *8, 10. The Court reasoned that directing court costs to
these funds is unconstitutional on the basis that they violate a right of the courts under
the separation of powers doctrine; there is no constitutional issue with the fee that
relates to a defendant's personal rights. Id. at 14. In fact, the $133 total Consolidated
Court Cost fee in this case could remain untouched, so long as the funds are redirected
to a "legitimate criminal justice purpose." Id. at n. 54. However, as of the date of this
reply brief, the Legislature has not yet acted to address the constitutional problem
discussed in Salinas regarding the Consolidated Court Cost fee.
As a remedy to the unconstitutional legislative allocation of fees, the Court in
Salinas modified the appellant's original court costs to remove the $133.00 Consolidated
Court Cost fee. Id. at 16.
The State believes that the holding of Salinas is expressly and prospectively
applicable as Appellant's trial was held after that opinion was issued. Id. at 15.
Consequently, the State must concede that the Bill of Costs and the Order Withdrawing
Funds should be modified to reflect actual court costs of $250.00 and not $383.00 as
currently reflected. See Tex. R. App. P. 43.2 (b) (West 2017); Salinas, 2017 Tex. Crim.
App. LEXIS 284 at *15; Brewer v. State, 572 S.W.2d 719, 723 (Tex. Crim. App. 1978)
(“Where the Court has the necessary data and evidence before it for reformation, the
judgment may be reformed on appeal.”).
Thank you,
/s/ Michael J. West
Michael West
Asst. Criminal District Attorney
Bar I.D. No. 21203300
100 N. Broadway, 4th Fl.
Tyler, Texas 75702
(903) 590-1720
(903) 590-1719
mwest@smith-county.com
CERTIFICATE OF COMPLIANCE
The undersigned hereby certifies that the pertinent sections of the State’s Letter
Brief in the above numbered cause contain 502 words, an amount which complies with
Texas Rule of Appellate Procedure 9.4.
/s/ Michael J. West
Michael J. West
Asst. Criminal District Attorney
Bar I.D. No. 21203300
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 1st day of December, 2017, the
following have been completed:
(1) The original of the State’s Letter Brief in Response to Appellant’s Brief in the
above numbered cause has been electronically filed with the Clerk of the Court of
Twelfth Court of Appeals.
(2) A legible copy of the State’s Response to Appellant's Brief in the above
numbered cause has been sent by electronic filing to:
Mr. Austin Jackson
Attorney at Law
305 S. Broadway, Ste. 700
Tyler, Texas 75702
JlawAppeals@gmail.com
/s/ Michael J. West
Michael J. West
Asst. Criminal District Attorney
Bar I.D. No. 21203300
100 N. Broadway, 4th Fl.
Tyler, Texas 75702
(903) 590-1720
(903) 590-1719