Affirmed and Majority and Concurring and Dissenting Opinions filed
December 20, 2018.
In The
Fourteenth Court of Appeals
NO. 14-17-00205-CR
BELISARIO I. LOPEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court
Harris County, Texas
Trial Court Cause No. 1466251
MAJORITY OPINION
Appellant Belisario I. Lopez challenges his capital murder conviction and the
assessment of certain court costs against him. Concluding that the evidence is legally
sufficient to corroborate accomplice witness testimony, counsel was not ineffective
for failing to object during the State’s closing argument, and the court costs assessed
against appellant are constitutional, we affirm.
Background
Three armed men—Jose Rivera (“Capo”), Fernan Santiago Vargas (“Bulto”),
and Johnny Enamorado—entered the 45 Smoke Shop. Each carried a loaded
weapon. Their plan was to steal drugs and money that Capo believed the shop owner
kept at the store.
The men left the store without any drugs. But Bulto came out with an
additional gun stolen from the store owner, and Enamorado came out with a gunshot
wound to his leg that continued to bleed as he entered the getaway car—a blue
Hyundai. The store owner was shot five times and died.
Video evidence shows the three men walk into the store with guns.
Enamorado testified that appellant cased out the 45 Smoke Shop before the robbery,
planned the heist with Capo, and acted as the getaway driver.
Cell phone records show that appellant was at or near the 45 Smoke Shop a
week before the murder and that he communicated with Capo many times that day.
Similar cell phone record evidence shows appellant’s whereabouts the day of the
murder. Appellant admitted he had a business relationship with Capo and sold the
Hyundai to Bulto.
At trial, appellant presented an alibi that he was with his wife Jeydee Gomez
on the day he was allegedly “casing” the 45 Smoke Shop and that he was with his
friend Crandall “Troy” Jones, who wanted to borrow his car, on the night of the
murder. Gomez and Jones testified that appellant was with them on the respective
nights.
During closing arguments, the State attacked the credibility of appellant’s
alibi and made several statements suggesting that appellant or his counsel or both
had asked Gomez and Jones to lie. During closing argument, the State argued: “[A]s
I’m sure you’ve suspected, you’ve . . . been lied to today. Let’s talk about Jeydee
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Gomez, who of her own volition or of being asked by the defendant, she got on that
stand and she lied to you.”
Later, during the rebuttal portion of the State’s closing argument, the
prosecutor argued:
Belisario’s credibility. You know, it’s a good story that these individuals
decide to frame him because they owed him a thousand dollars. But the
problem is Belisario and Jeydee and Troy tried just too hard to explain
everything. Right? They needed to explain the calls on the 3rd so they put up
Jeydee. Let’s be truthful here. The 3rd doesn’t really matter. I mean, it doesn’t.
No offense happened on the 3rd. There’s communication on the 3rd but no
offense happened on the [3]rd. Why put Jeydee up there to lie?
At the end of the rebuttal portion of the State’s closing argument, the State
argued:
And ladies and gentlemen of the jury, I submit to you beyond a reasonable
doubt that the reason he lied is because he knows he’s guilty. Because he
doesn’t want to go to prison. And the best way to avoid that is to take the stand
and lie and ask your wife to lie and ask Troy who works for you and depends
on you for a living to lie. And that’s what he did. And now that you see hard
evidence of that lie, you should be disgusted with him. Disgusted that he
would take the stand and take that oath and flat out lie. Regardless of trying
to save himself, flat out lie under oath. It’s ridiculous, and you all should feel
the same disgust that I feel for that.
Appellant’s trial counsel did not object to these statements, ask the trial court
to instruct the jury to disregard them, or move for a mistrial. The jury found appellant
guilty. Appellant received a mandatory sentence of life imprisonment without the
possibility of parole.
Discussion
I. The evidence is legally sufficient to corroborate accomplice witness
testimony.
In his first issue, appellant challenges the legal sufficiency of the evidence to
corroborate the testimony of accomplice witness Enamorado. A conviction obtained
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in reliance upon accomplice testimony must be supported by sufficient corroborating
evidence tending to connect the defendant to the offense committed. Tex. Code
Crim. Proc. art. 38.14; Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007).
When reviewing the sufficiency of the evidence to corroborate accomplice
testimony, we eliminate the accomplice testimony and then examine the remaining
portions of the record to see if there is any evidence that tends to connect the
defendant with the commission of the offense. Malone v. State, 253 S.W.3d 253, 257
(Tex. Crim. App. 2008); Smith v. State, 436 S.W.3d 353, 369 (Tex. App.—Houston
[14th Dist.] 2014, pet. ref’d). The corroborating evidence need not, standing alone,
rise to the level of proof beyond a reasonable doubt. Malone, 253 S.W.3d at 257;
Smith, 436 S.W.3d at 369. Instead, the evidence simply must link the defendant to
the commission of the offense and show that rational jurors could conclude that the
evidence sufficiently “tended to connect” the defendant to the offense. Simmons v.
State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009); Smith, 436 S.W.3d at 369.
Accordingly, corroborative evidence need not be legally sufficient in itself to
establish a defendant’s guilt. Casanova v. State, 383 S.W.3d 530, 538 (Tex. Crim.
App. 2012); Smith, 436 S.W.3d at 369.
Taken in isolation, suspicious circumstances such as the accused’s presence
at the scene of the crime, motive, or opportunity to commit the crime are not by
themselves sufficient to corroborate the testimony of an accomplice witness. Smith,
436 S.W.3d at 369. But cumulative suspicious circumstances may tend to connect
the accused to the charged offense, even if no circumstances are sufficient to do so
individually. Id. Viewed collectively, even otherwise insignificant incriminating
circumstances may tend to connect a defendant to a crime he is accused of
committing. Id. Therefore, we “consider the combined force of all of the non-
accomplice evidence that tends to connect the accused to the offense.” Smith v. State,
332 S.W.3d 425, 442 (Tex. Crim. App. 2011). We view the evidence in the light
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most favorable to the jury’s verdict. Brown v. State, 270 S.W.3d 564, 567 (Tex.
Crim. App. 2008).
According to the indictment, appellant, while committing or attempting to
commit robbery, intentionally caused the store owner’s death by shooting him with
a firearm. A person commits capital murder if he intentionally causes the death of
an individual in the course of committing or attempting to commit robbery. Tex.
Penal Code §§ 19.02(b), 19.03(a). A person may be convicted as a party to an offense
if the offense is committed by the actor’s own conduct, by the conduct of another
for which the actor is criminally responsible, or both. See id. § 7.01(a).
The trial court instructed the jury on the law of parties and the law of
conspiracy. See id. § 7.02. A person is criminally responsible for an offense
committed by the conduct of another if, acting with intent to promote or assist the
commission of the offense, the person solicits, encourages, directs, aids, or attempts
to aid the other person to commit the offense. Id. § 7.02(a). If, in the attempt to carry
out a conspiracy to commit robbery, capital murder is committed by one of the
conspirators, all conspirators are guilty of the capital murder actually committed,
though having no intent to commit it, if the capital murder was committed in
furtherance of the unlawful purpose and was one that should have been anticipated
as a result of the carrying out of the conspiracy. Id. § 7.02(b).
In addition to Enamorado’s accomplice witness testimony, the following
evidence was adduced at trial:
Appellant testified that he had a preexisting relationship with Capo and
Bulto, employed Capo in connection with his renovation business, and
sold Bulto the blue Hyundai. Appellant admitted he communicated with
Capo on the phone a lot in January, before and after the crime, although
appellant claimed that this communication was related to the sale of the
car.
Two police detectives (Condon and Powell) testified that appellant’s
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and Capo’s phones were at or near the 45 Smoke Shop six days before
the murder. This testimony was supported by phone mapping
illustrations.
Condon testified that cell phone record data shows appellant had a
flurry of voice communications with Capo and exchanged four texts
with Capo six days before the murder.
Sergeant Rodriguez testified as to Gomez’s text messages extracted
from appellant’s phone and translated from Spanish. The text messages
conflicted with appellant’s alibi as it related to his whereabouts six days
before the murder. Specifically, Gomez’s text messages to appellant
during the timeframe that she stated she was with appellant were
inconsistent with testimony that Gomez and appellant were together at
that time and were inconsistent with the purported subject matter of
their communications.
Condon testified that cell phone record data showed appellant and Capo
exchanged 25 voice calls on the day of the murder and a 1 minute, 39
second call from appellant to Capo at 8:49 p.m., which Condon testified
“probably was the call right before they entered [the 45 Smoke Shop].”
Condon also testified that appellant was in the general vicinity of the
shop on that day.
Powell testified that the cell phone record data, after application of Cell
Hawk software, showed that (1) appellant’s cell phone was at or near a
gas station near the scene of the murder shortly before the time of the
crime; and (2) appellant’s cell phone was at or near the 45 Smoke Shop
at the time of the murder.
Officers testified as to discrepancies between the data extracted from
appellant’s cell phone and appellant’s cell phone records, suggesting
the deletion of the record of calls visible on his cell phone that were
made during a four day period before, during, and after the murder.
Cell phone records showed that appellant had communicated with
Enamorado on two days during the week before the murder,
contradicting appellant’s testimony that he had not spoken to
Enamorado.
Police officer testimony accordingly shows that appellant and Capo both were
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near the 45 Smoke Shop at the same time, six days before the murder. The evidence
also shows a high volume of calls between appellant and Capo that day, and again
on the date of the murder, presenting strong circumstantial evidence linking
appellant with the crime. See Longoria v. State, 154 S.W.3d 747, 758 (Tex. App.—
Houston [14th Dist.] 2005, pet. ref’d) (finding that flurry of communications
between defendant and perpetrators during course of robbery and immediately
afterward presented strong circumstantial evidence that tended to connect defendant
to the crime).
Although appellant presented alibi evidence to address the nature of his
relationship with Capo and explain why he was in the vicinity of the crime in both
instances, the jury had the freedom to measure the credibility of appellant’s alibi by
assessing the credibility of appellant and his witnesses. The jury heard evidence that
contradicted appellant’s alibi evidence. The State presented witnesses to
demonstrate that appellant had deleted cell phone data from the relevant timeframe.
Coupled with the evidence establishing appellant’s location six days before the
murder and on the day of the murder, evidence of appellant’s targeted deletion of
cell phone data tends to connect appellant to the murder.
The non-accomplice evidence shows appellant acted with Capo in preparing
for the robbery and then took steps to conceal from investigators his communications
with Capo and others. After eliminating the accomplice testimony from
consideration and examining the remaining evidence, we conclude that the record
contains evidence linking appellant to the murder and rational jurors could conclude
that this evidence sufficiently tends to connect appellant to this offense. See Cerna
v. State, 441 S.W.3d 860, 866 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d).
Because we conclude non-accomplice evidence tends to connect appellant with the
commission of the crime for which he was convicted, we overrule appellant’s first
issue.
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II. Trial counsel’s failure to object to jury arguments was not
ineffective assistance.
In his second issue, appellant asserts that his trial counsel rendered ineffective
assistance by failing to object to statements by the State in closing arguments in
which the State asserted that appellant had asked Gomez and Jones to lie and implied
that appellant’s counsel put Gomez on the witness stand to lie. To prevail on an
ineffective-assistance claim, a defendant must prove that counsel’s representation
fell below an objective standard of reasonableness and there is a reasonable
probability that, but for counsel’s deficiency, the result of the proceeding would have
been different. Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984). We
indulge a strong presumption that counsel’s conduct fell within the wide range of
reasonable assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App.
1994). To defeat this presumption, “[a]ny allegation of ineffectiveness must be
firmly founded in the record, and the record must affirmatively demonstrate the
alleged ineffectiveness.” Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999).
In the majority of cases, the appellant is unable to meet the first prong of the
Strickland test—that trial counsel’s representation fell below an objective standard
of reasonableness—because the record on direct appeal is undeveloped. Mata v.
State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). When the record is silent as to
trial counsel’s strategy, we will not conclude that appellant received ineffective
assistance unless the challenged conduct was “so outrageous that no competent
attorney would have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
Crim. App. 2005). A sound trial strategy may be imperfectly executed, but the right
to effective assistance of counsel does not entitle a defendant to errorless or perfect
representation. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).
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It is not sufficient for the appellant to show, with the benefit of hindsight, that
his counsel’s actions or omissions during trial were merely of questionable
competence. Mata, 226 S.W.3d at 430. Rather, to establish that the attorney’s acts
or omissions were outside the range of professionally competent assistance,
appellant “must show that counsel’s errors were so serious that he was not
functioning as counsel.” Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim. App.
1995). We may not assume a lack of sound trial strategy on the part of trial counsel
merely because we are unable to discern any particular strategic or tactical purpose
in counsel’s trial presentation. See Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim.
App. 2002) (“A vague, inarticulate sense that counsel could have provided a better
defense is not a legal basis for finding counsel constitutionally incompetent. . . . [A]
defendant must prove, by a preponderance of the evidence, that there is, in fact, no
plausible professional reason for a specific act or omission.”).
Appellant contends that this is “not a case where this Court should rely upon
a ‘silent record’ in denying Appellant’s claim as no conceivable trial strategy would
want the State to accuse their client and themselves of a potential crime.” This
argument lacks merit. First, the absence of an objection by appellant’s trial counsel
hardly equates to a desire by appellant’s trial counsel for the prosecution to make the
statements. And there is no indication that trial counsel desired or invited these
accusations. Second, appellant cites no authority for the proposition that a failure by
trial counsel to object to purported improper jury argument, standing alone, would
be “so outrageous that no competent attorney would have engaged in it.” See
Goodspeed, 187 S.W.3d at 392. In fact, we have recognized that the failure to object
to improper jury argument may be based on a reasonable trial strategy: to avoid
drawing attention to the prosecutor’s statement. See Orellana v. State, 489 S.W.3d
537, 550 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d); see also Kuhn v. State,
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393 S.W.3d 519, 539 (Tex. App.—Austin 2013, pet. ref’d).
On these facts, we cannot conclude that trial counsel’s failure to object to the
statements was conduct so outrageous that no competent attorney would have
engaged in it. See Goodspeed, 187 S.W.3d at 392–94; see also Hebert v. State, 489
S.W.3d 15, 22–24 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Therefore,
appellant has not shown that his trial counsel rendered ineffective assistance. See
Goodspeed, 187 S.W.3d at 392–94; Hebert, 489 S.W.3d at 22–24. We overrule
appellant’s second issue.
III. Challenged statutes imposing court costs are constitutional.
In his third and fourth issues, appellant challenges the constitutionality of
statutes imposing court costs for jury’s and sheriff’s fees. Appellant did not object
to the imposition of court costs in the trial court. 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
10
§ 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
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
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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 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.
12
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 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 “are not used
13
for a criminal justice purpose.”
A. The jury’s fee is constitutional.
In his third issue, appellant challenges the jury’s fee 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 district court, as here. Tex. Code Crim. Proc. art. 102.004(a). Appellant argues the
fee is unconstitutional because it is directed to the county’s general fund.
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 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.1 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 third issue.
B. The sheriff’s fee is constitutional.
In his fourth issue, appellant challenges the “summoning witness/mileage”
sheriff’s fee as an impermissible tax collected by the judiciary that is not expended
for a legitimate criminal justice purpose. Article 102.011 imposes a $5 fee on a
1
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)).
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defendant convicted of a felony “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. art. 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 “reimbursement of the peace
officer who performed the service of summoning a witness in the case.” 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
15
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 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.
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.2 We overrule appellant’s fourth issue.
2
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.
16
Conclusion
Concluding that the evidence is legally sufficient to satisfy the accomplice
witness rule, appellant has not shown that his trial counsel’s failure to object to the
prosecutor’s statements during closing arguments constitutes ineffective assistance
of counsel, 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., dissenting.)
Publish — Tex. R. App. P. 47.2(b).
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