Nicholas Jackson v. State

Affirmed and Majority Opinion and Concurring and Dissenting Opinion filed
December 20, 2018.

In The

Fourteenth Court of Appeals

NO. 14-17-00511-CR

NICHOLAS JACKSON, Appellant
V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 8
Harris County, Texas
Trial Court Cause No. 2124534

MAJORITY OPINION

Appellant Nicholas Jackson was convicted of a Class B misdemeanor for
failing to stop and give information and was sentenced to two days in Harris
County Jail. He appeals his conviction and the assessment of certain court costs.
Concluding that the evidence was legally sufficient to support appellant’s
conviction, appellant did not prove he was egregiously harmed by purported jury
charge error, and the court costs assessed against appellant are constitutional, we
affirm the trial court’s judgment.

Background

Jack Simmons was in the left turn lane at Montrose and Fairview Streets in
Houston, Texas. Appellant’s car was ahead of him while waiting to turn left. The
solid green light afforded only an unprotected left turn. Appellant did not complete
his turn before the light turned red, so he backed out of the intersection and made
contact with the front of Simmons’s car. Simmons felt his vehicle “shudder” from
the impact and heard a pop and crack. When the light turned green again, both
appellant and Simmons completed the left turn.

Simmons followed appellant for some distance while appellant kept driving.
Simmons alerted the Houston Police Department at some point. Meanwhile,
Simmons sounded his horn and flashed his lights four or five times. He pulled up
next to appellant and asked, “Are you going to stop?” Appellant waved at
Simmons but continued driving.

Officer Peters responded to Simmons’s call and conducted a traffic stop. The
stop was recorded on Peters’s bodycam. Peters took a statement from Simmons
and asked to see where appellant hit his vehicle. Simmons used a light on his cell
phone to show Peters the damage. Peters also asked Simmons whether he wanted
to prosecute or just obtain appellant’s insurance information. Peters informed
appellant that he had failed to pull over after an accident. Appellant appeared
surprised and stated that he did not believe he had been in an accident. Peters told
appellant that Simmons’s vehicle had very little damage except to his front license
plate.1 Appellant’s vehicle had no damage.

Appellant was indicted for “intentionally and knowingly” failing to stop and

1
The estimate to repair the damage to Simmons’s car was $577.97.

2
give his name and address to Simmons. The jury charge included a definition of
“knowingly.” Appellant did not object to the charge. A jury found appellant guilty,
and the trial court sentenced him to two days’ confinement in county jail, plus
court costs, including a district attorney’s fee of $25, a jury fee of $40, and a
sheriff’s fee of $15 for “Summoning Witness/Mileage.”

Discussion

Appellant challenges his conviction on the grounds of legal insufficiency
and jury charge error. Appellant also challenges the constitutionality of certain
court costs assessed against him.

I. The evidence is legally sufficient.

In his first issue, appellant argues the evidence is legally insufficient to
prove he was knowingly involved in an accident. When reviewing sufficiency of
the evidence, we view all the evidence in the light most favorable to the verdict
and determine, based on that evidence and any reasonable inferences therefrom,
whether any rational factfinder could have found the elements of the offense
beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App.
2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). We do not sit as a
thirteenth juror and may not substitute our judgment for that of the factfinder by
reevaluating the weight and credibility of the evidence. Isassi v. State, 330 S.W.3d
633, 638 (Tex. Crim. App. 2010). Rather, we defer to the factfinder to fairly
resolve conflicts in testimony, weigh the evidence, and draw reasonable inferences
from basic to ultimate facts. Id. This standard applies equally to both
circumstantial and direct evidence. Id. Each fact need not point directly and
independently to the appellant’s guilt, as long as the cumulative effect of all
incriminating facts is sufficient to support the conviction. Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007).
3
 To establish failure to stop and give information, the State was required to
prove that while operating a vehicle, appellant was “intentionally or knowingly”
involved in an accident resulting in damage to another vehicle and failed to stop or
provide required information. Tex. Transp. Code §§ 550.022(c), 550.023; Steen v.
State, 640 S.W.2d 912, 915 (Tex. Crim. App. 1982). Appellant challenges only the
legal sufficiency of the evidence that he was intentionally or knowingly involved
in an accident.

Appellant argues that the totality of the evidence does not support a
determination that he was knowingly involved in an accident with Simmons
because appellant drove prudently while Simmons followed him, acted surprised
when the officer said appellant had been involved in an accident, and sustained no
damage to his vehicle, among other things.2 We disagree.

The jury also heard the following testimony:

 Simmons felt his vehicle shudder when appellant backed into him;

 Simmons heard a pop and crack at the same time;

 While following Jackson, Simmons sounded his horn and flashed his
lights about four or five times each;

 Simmons pulled alongside Jackson, rolled down his window and
asked, “are you going to stop?” and

 The officer saw damage to the front of Simmons’s vehicle.

Intent may be inferred from circumstantial evidence. Darkins v. State, 430
S.W.3d 559, 565 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d). While
appellant provided evidence that he did not know he was involved in an accident
2
Appellant also contends that the culpable mental state of “intent” does not apply to the
offense of failure to stop and give information. We need not reach this issue because we
conclude there is legally sufficient evidence to support the jury’s finding that appellant
knowingly committed the offense.

4
with Simmons, the jury weighed this evidence against the above evidence.

The jury has the responsibility of weighing all the evidence, resolving any
evidentiary conflicts, and drawing reasonable inferences from the evidence
presented at trial. See Garcia v. State, 57 S.W.3d 436, 441 (Tex. Crim. App. 2001).
In light of the evidence presented and the reasonable inferences the jury was free to
make, we conclude that the evidence is legally sufficient to show that appellant
was knowingly involved in a traffic accident. We overrule appellant’s first issue.

II. Appellant was not egregiously harmed by the trial court’s
definition of “knowingly” submitted to the jury.
In his second issue, appellant argues that he was egregiously harmed
because the charged offense is a “circumstances of conduct” offense and the
court’s charge did not limit the definition of “knowingly” to the circumstances
surrounding his failure to stop and give information. The Court of Criminal
Appeals has recognized three categories of offenses: “result of conduct,” “nature of
conduct,” or “circumstances of conduct.” Robinson v. State, 466 S.W.3d 166, 170
(Tex. Crim. App. 2015). Circumstances of conduct offenses prohibit otherwise
innocent behavior that becomes criminal only under specific circumstances. Id.

In analyzing a jury charge issue, our first duty is to decide whether error
exists. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). If so, we
then analyze that error for harm. Id. When a defendant fails to object to the charge,
we will reverse only when the error was so egregious and created such harm that
the defendant did not have a fair trial. Bluitt v. State, 137 S.W.3d 51, 52-53 (Tex.
Crim. App. 2004); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).
To determine whether a defendant has sustained egregious harm from a non-
objected-to instruction, appellate courts consider (1) the entire charge; (2) the state
of the evidence, including contested issues; (3) arguments of counsel; and (4) any

5
other relevant information. Bluitt, 137 S.W.3d at 52-53; Almanza, 686 S.W.2d at
171.

Appellant complains that the trial court’s definition of “knowingly” in the
charge was too broad because it defined the term as involving knowledge of the
result, nature, and circumstances of conduct and thus was not limited only to
circumstances of conduct.3 Presuming that the failure to stop and give information
is a circumstances of conduct offense and that the court erred in not limiting the
definition of “knowingly” as asserted by appellant, we conclude the error did not
create harm such that the defendant did not have a fair trial.4

Appellant concedes that the focus of the evidence and the contested issues at
trial were directed at whether he knew he had been in an accident. He further
concedes that closing arguments also centered on whether he was knowingly
involved in an accident. Appellant argues only that the charge should have omitted
language involving nature of conduct and result of conduct offenses.5 He does not
argue that the state of the evidence, arguments of counsel, or any other relevant
information advanced an erroneous theory. See Bluitt, 137 S.W.3d at 52-53. We
conclude that appellant did not meet his burden of showing egregious harm and
overrule his second issue.

3
The definition of “knowingly” included in the charge follows:
A person acts knowingly, or with knowledge, with respect to the nature of his
conduct, or to circumstances surrounding his conduct, when he is aware of the
nature of his conduct or that the circumstances exist. A person acts knowingly, or
with knowledge, with respect to a result of his conduct when he is aware that his
conduct is reasonably certain to cause the result.
4
Appellant does not contend that any Texas court has categorized the offense of failure
to stop and give information as a circumstances of conduct offense.
5
Appellant also complains that the term “intentional” was not defined in the charge but
does not elaborate on how such purported error resulted in egregious harm.

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 III. Challenged statutes imposing court costs are constitutional.

In his third through fifth issues, appellant challenges the constitutionality of
statutes imposing court costs for district attorney’s, jury’s, and sheriff’s fees.
Appellant did not object to the imposition of court costs in the trial court. The costs
were assessed in open court but not itemized in the judgment. The cost bill was
generated the same day as the judgment, but it is not clearly incorporated into the
judgment. The judgment includes a blank for “court costs,” which states “$ as
assessed.”

Convicted defendants may object to the assessment of mandatory court costs
against them for the first time on appeal when the judgment does not contain an
itemization of the imposed court costs. London v. State, 490 S.W.3d 503, 507 (Tex.
Crim. App. 2016); Bowden v. State, 502 S.W.3d 913, 914 (Tex. App.—Houston
[14th Dist.] 2016, pet. ref’d). We presume that the challenged costs were
“mandatory court costs” and thus preservation of these complaints was not
required.

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). When reviewing the
constitutionality of a statute, we presume that the statute is valid and that the
legislature was neither unreasonable nor arbitrary in enacting it. See Rodriguez v.
State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002); Eugene v. State, 528 S.W.3d 245,
249 (Tex. App.—Houston [14th Dist.] 2017, no pet.); see also Tex. Gov’t Code
§ 311.021 (requiring courts to presume that “compliance” with Texas and United
States Constitutions was intended). 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). We make every reasonable
presumption in favor of the statute’s constitutionality unless the contrary is clearly

7
shown. Peraza v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015). The party
challenging the statute has the burden to establish its unconstitutionality. Id.;
Rodriguez, 93 S.W.3d at 69.

Appellant has made a facial challenge to the constitutionality of the statutes
in question. A facial challenge is an attack on a statute itself as opposed to a
particular application. Peraza, 467 S.W.3d at 514. In such a challenge, the
challenger must establish that “no set of circumstances exists under which the
statute would be valid.” Id.; see also State v. Rosseau, 396 S.W.3d 550, 557 (Tex.
Crim. App. 2013) (holding party asserting a facial challenge “must establish that
the statute always operates unconstitutionally in all possible circumstances”).
Because a facial challenge attacks a statute’s validity in all circumstances, it is “the
most difficult challenge to mount successfully.” See Santikos v. State, 836 S.W.2d
631, 633 (Tex. Crim. App. 1992).

In analyzing facial challenges to court costs, we consider only applications
of a statute that it authorizes or prohibits. See Peraza, 467 S.W.3d at 515. We do
not evaluate the facial constitutionality of a court cost by theorizing where the
funds collected and distributed might be spent. See id.

Appellant claims the fees at issue violate the separation of powers provision
of the Texas Constitution. The Texas Constitution expressly guarantees the
separation of powers among the three branches of government. Tex. Const. art. II,
§ 1; Salinas v. State, 523 S.W.3d 103, 106 (Tex. Crim. App. 2017). Article II,
section 1 of the Texas Constitution states the following:
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
8
 instances herein expressly permitted.

Tex. Const. art. II, § 1.
This section ensures that the powers granted to one governmental branch
may be exercised only by that branch, to the exclusion of the other branches. Ex
parte Lo, 424 S.W.3d at 28. When one branch of government assumes or is
delegated a power more properly attached to another branch, that assumption or
delegation of power violates the separation-of-powers provision. Salinas, 523
S.W.3d at 106-07. If a statute turns the courts into tax gatherers, then the statute
delegates to the courts a power more properly attached to the executive branch;
however, the collection of fees in criminal cases is a part of the judicial function if
the statute under which court costs are assessed (or an interconnected statute)
provides for an allocation of such court costs to be expended for legitimate
criminal justice purposes. See id. at 106-07 (holding that consolidated fee statute
was unconstitutional as to state government accounts for “counseling abused
children” and “comprehensive rehabilitation”). In other words, a reviewing court
must determine whether the fee is a disguised tax on a criminal defendant (which is
unconstitutional) or a fee for a legitimate criminal justice purpose (which is
constitutional). Allen v. State, No. 01-16-00768-CR, 2018 WL 4138965, at *6
(Tex. App.—Houston [1st Dist.] Aug. 30, 2018, pet. granted).
The earliest statement by the Court of Criminal Appeals on the
constitutionality of court costs disallowed a library fee because it was neither
necessary nor incidental to the trial of a criminal case. Ex parte Carson, 143 Tex.
Crim. 498, 506, 159 S.W.2d 126, 130 (1942). The high court later modified the
Carson test, rejecting the requirement under Carson that “to pass constitutional
muster, the statutorily prescribed court cost must be ‘necessary’ or ‘incidental’ to
the ‘trial of a criminal case.’” Peraza, 467 S.W.3d at 517 (emphasis added). The

9
court stated that court costs should be related to the recoupment of costs of judicial
resources, but it found the terms “necessary or incidental” too limiting. Id. The
court did not say that necessary or incidental costs were unconstitutional, however.
Court costs that satisfy Carson continue to be constitutional.
Our legislature has developed statutorily prescribed court costs with the
intention of reimbursing the judicial system for costs incurred in the administration
of the criminal justice system. Id. Although not necessary to or an incidental
expense of the actual trial of a criminal case, the costs may nevertheless be directly
related to the recoupment of costs of judicial resources expended in connection
with the prosecution of criminal cases within our criminal justice system. See id.
In addition, if the statute under which court costs are assessed (or an
interconnected statute) provides for an allocation of such court costs to be
expended for legitimate criminal justice purposes, then the statute allows for a
constitutional application and does not violate the separation of powers provision.
Id. (tracing allocation of funds collected as costs for DNA testing); see also
Johnson v. State, No. 14-16-00658-CR, 2018 WL 4925456, at *5 (Tex. App.—
Houston [14th Dist.] Oct. 11, 2018, no pet. h.). A “criminal justice purpose” is one
that “relates to the administration of our criminal justice system” and should be
evaluated on a statute-by-statute/case-by-case basis. Peraza, 467 S.W.3d at
517-18; Johnson, 2018 WL 4925456, at *5.
With this framework in mind, we address each challenged statute in turn.
Appellant argues only that the costs at issue violate the separation of powers
provision because they are allocated into the county’s general fund and “allow
spending for purposes other than legitimate criminal justice purposes.”
A. The district attorney’s fee is constitutional.
In his third issue, appellant challenges the district attorney fee “to the extent
that it allocates funds to the county’s general fund” as an impermissible tax
10
collected by the judiciary that is not expended for a legitimate criminal justice
purpose. Code of Criminal Procedure article 102.008(a) imposes a $25 fee on a
defendant convicted of a misdemeanor “for the trying of the case by the district or
county attorney.” Tex. Code Crim. Proc. art. 102.008(a). Another panel of this
court recently overruled a facial constitutional challenge to article 102.008(a).
Moliere v. State, No. 14-17-00594-CR, 2018 WL 6493882, at *6 (Tex. App.—
Houston [14th Dist.] Dec. 11, 2018, no pet. h.). We concluded that the statute
passes constitutional muster because it is collected to reimburse the prosecutor for
costs incurred in trying the case as a “recoupment of costs” under Peraza. See id.
(citing Peraza, 467 S.W.3d at 517). We overrule appellant’s third issue.

B. The jury’s fee is constitutional.
In his fourth issue, appellant challenges the jury’s fee “to the extent that it
allocates funds to the county’s general fund” as an impermissible tax collected by
the judiciary that is not expended for a legitimate criminal justice purpose. Article
102.004(a) imposes a $40 fee on a defendant convicted by a jury in a county court,
as here. Tex. Code Crim. Proc. art. 102.004(a). The State argues that an
interconnected statute in the Local Government Code directs jury’s fee funds to be
deposited with the county treasurer. See Tex. Local Gov’t Code § 113.004(b)(1);
see also Tex. Att’y Gen. Op. No. GA-0262, at *4 (2004) (noting that jury’s fees
are to be deposited into a special fund that must be kept separate from other
treasury funds).

Another panel of this court recently overruled a facial constitutional
challenge to article 102.004(a). Johnson, 2018 WL 4925456, at *7-8. We held that
although article 102.004(a) does not allocate the jury’s fee to any specific fund or
direct how the funds collected are to be expended, section 113.004 of the Local
Government Code does. Id. at *7. Section 113.004 requires the $40 jury’s fee to be

11
deposited into a fund designated for jury’s fees, among other things, and used for
the payment of claims registered in the class of claims corresponding to that fund.6
Id. We concluded that section 113.004 not only allows but mandates that jury’s
fees collected under article 102.004 be used for legitimate criminal justice
purposes. Id.

Consistent with our opinion in Johnson, we conclude that appellant has not
met his burden to show that the jury’s fees collected under the statute cannot be
used for legitimate criminal justice purposes in all possible circumstances. See id.
We overrule appellant’s fourth issue.

C. The sheriff’s fee is constitutional.
In his fifth and final issue, appellant also challenges the “summoning
witness/mileage” sheriff’s fee “to the extent that it allocates funds to the county’s
general fund” as an impermissible tax collected by the judiciary that is not
expended for a legitimate criminal justice purpose.7 Article 102.011 imposes a $5
fee on a defendant convicted of a misdemeanor “for summoning a witness” and 29
cents per mile “for mileage required of an officer to perform a service listed in this
subsection and to return from performing that service.” Tex. Code Crim. Proc.
§ 102.011(a)-(b). The State argues article 102.011 is constitutional because it
directs the funds to be expended for the legitimate criminal justice purpose of
recouping “expenses associated with the services provided by peace officers in

6
Amounts in the fund may not be transferred from the payment of claims registered in
that fund unless there is an excess amount in that class. Johnson, 2018 WL 4925456, at *7 (citing
Tex. Loc. Gov’t Code § 113.004(d)).

7
Appellant argues the fee goes to the general fund of the county and can be used for any
purpose, unless the service is provided by a peace officer employed by the State of Texas, in
which case 20% of the money is sent to the State for deposit in the State’s General Revenue
Fund (in this case, that would be $3). Appellant cites a 2014 report of the Texas Office of Court
Administration to support his argument.

12
relation to a defendant’s criminal trial.”8 We agree.

Appellant relies on our sister court’s opinion in Hernandez v. State, No. 01-
16-00755-CR, 2017 WL 3429414 (Tex. App.—Houston [1st Dist.] Aug. 10, 2017,
no pet.), in which the court held that under Salinas, a statute imposing a district
attorney’s fee was unconstitutional “to the extent that it allocates funds to the
county’s general fund because those funds allow spending for purposes other than
legitimate criminal justice purposes.” Id. at *7 (citing Salinas, 523 S.W.3d at 109
n.26). However, the holding in Salinas does not render every court cost that goes
into a general fund unconstitutional.
In Salinas, the defendant challenged the assessment of court costs in a
consolidated fee on the basis that certain government accounts to which some of
the funds were directed—for abused children’s counseling and comprehensive
rehabilitation—“were not sufficiently related to the court system to be valid
recipients of money collected as court costs.” 523 S.W.3d at 105-06. The court
addressed “whether the two accounts at issue [met] the requirement that the
relevant statutes provide for an allocation of funds ‘to be expended for legitimate
criminal justice purposes.’” Id. at 107. As to the comprehensive rehabilitation
account, in concluding that the statute at issue was unconstitutional “to the extent it
allocate[d] funds to” that account, the court noted that the statute, on its face, did
not appear to serve a legitimate criminal justice purpose because the statute did not
articulate how the funds would be used for “anything relating to criminal justice.”
Id. at 108-09. As to the abused children’s counseling account, the court noted that
the program benefitting abused children, to which the funds were directed in the
statute, “no longer exists and the funds revert to the General Revenue Fund.” Id. at

8
The State also suggests that interconnected statutes allocate the witness summoning fees
to a specific fund for a specific purpose, weaving a complicated path from a Texas Constitutional
mandate to several sections of the Local Government Code for the placement of funds.

13
109. Accordingly, the State did not establish that those funds were to be “expended
for legitimate criminal justice purposes.” Id. Salinas does not support the broad
proposition that every court cost that is deposited into a general fund is
unconstitutional. See Allen, 2018 WL 4138965, at *7 (citing Salinas, 523 S.W.3d
at 109 n.26).

In Peraza, the Court of Criminal appeals noted that court costs are “intended
by the Legislature” to allow for a “recoupment of the costs of judicial resources
expended in connection with the trial of the case,” 467 S.W.3d at 517 (citing Weir
v. State, 278 S.W.3d 364, 366 (Tex. Crim. App. 2009), and it held that permissible
“court costs should be related to the recoupment of costs of judicial resources.” Id.
That language controls our analysis.

We conclude the tracing of accounts through various statutes is unnecessary
for costs that are “related to the recoupment of costs of judicial resources.” See id.
Here, the statute explicitly directs the payment of the sheriff’s fee “for services
performed” in connection with the recoupment of costs of judicial resources,
specifically, the costs of summoning witnesses for criminal trials. See Tex. Code
Crim. Proc. § 102.011(a)-(b). Because the sheriff’s fee is an actual recoupment of
the out of pocket expenses incurred for summoning witnesses and for associated
mileage, we conclude that appellant has not met his burden to show that the
sheriff’s fees collected under the statute cannot be used for legitimate criminal
justice purposes in all possible circumstances.9 We overrule appellant’s fifth issue.

9
Our sister court similarly concluded that a “summoning witness/mileage fee” assessed
under article 102.011 was used to recoup out of pocket expenses incurred in the prosecution of
the convicted defendant who was assessed the fee being challenged and thus the fee was
“unquestionably for a legitimate justice purpose.” Allen, 2018 WL 4138965, at *8-9.

14
 Conclusion

Concluding that the evidence was legally sufficient to support appellant’s
conviction, appellant did not prove he was egregiously harmed by the trial court’s
failure to limit the definition of “knowingly” in the jury charge, and the court costs
assessed against appellant are constitutional, we affirm.

/s/ Martha Hill Jamison
Justice

Panel consists of Chief Justice Frost and Justices Christopher and Jamison (Frost,
C.J., concurring and dissenting).
Publish—TEX. R. APP. P. 47.2(b).

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