IN THE
TENTH COURT OF APPEALS
No. 10-18-00269-CR
D'WARREN LAMAR SIMMONS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2015-1825-C1
OPINION
In three issues, appellant, D’Warren Lamar Simmons, challenges his conviction for
assault family violence with a prior conviction for assault family violence. See TEX. PENAL
CODE ANN. § 22.01(a)(1), (b)(2)(A). (West 2019). Specifically, Simmons contends that: (1)
the trial court abused its discretion by excluding recorded statements made by the
complainant, Selsa Herrera; (2) the trial court failed to properly instruct the jury
regarding the charged offense; and (3) the court cost imposed for the time-payment fee is
unconstitutional. We affirm as modified.
I. HERRERA’S RECORDED STATEMENTS
In his first issue, Simmons argues that the trial court abused its discretion by
excluding recorded statements Herrera gave to the District Attorney’s office in which she
admitted to lying to the police and stating that someone other than Simmons actually
assaulted her. Simmons asserts that the statements should have been admitted because
they are against Herrera’s penal interest and exposed her to criminal liability for making
a false police report, and because the statements were sufficiently corroborated. We
disagree.
A. Standard of Review
A trial court is given broad discretion in determining the admissibility of evidence.
Allridge v. State, 850 S.W.2d 471, 492 (Tex. Crim. App. 1991). As such, we review a trial
court’s admission or exclusion of evidence under an abuse-of-discretion standard.
Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A reviewing court should
not reverse a trial court’s ruling on the admissibility of evidence that falls within the
“zone of reasonable disagreement.” Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.
App. 1990) (op. on reh’g).
B. Discussion
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At trial, Simmons proffered Herrera’s recorded statements under the statement-
against-interest exception to the hearsay rule outlined in Texas Rule of Evidence 803(24),
which defines a statement against interest as,
A statement that:
(A) a reasonable person in the declarant’s position would have made
only if the person believed it to be true because, when made, it was
so contrary to the declarant’s proprietary or pecuniary interest or
had so great a tendency to invalidate the declarant’s claim against
someone else or to expose the declarant to civil or criminal liability
or to make the declarant an object of hatred, ridicule, or disgrace; and
(B) is supported by corroborating circumstances that clearly indicate its
trustworthiness, if it is offered in a criminal case as one that tends to
expose the declarant to criminal liability.
TEX. R. EVID. 803(24).
Much of the arguments at trial and on appeal center on subsection (B) of Rule
803(24)—the corroboration requirement.1 Simmons admits in his brief that he offered no
independent evidence to corroborate Herrera’s recorded statements. However, Simmons
contends that the circumstances surrounding the statements render the statements self-
corroborating.
The Court of Criminal Appeals has listed a number of factors that are relevant
when considering the trustworthiness of an inculpatory statement made by a declarant,
including,
1 It is undisputed on appeal that the recorded statements made by Herrera are self-inculpatory.
Simmons v. State Page 3
(1) whether the guilt of the declarant is inconsistent with the guilt of the
defendant; (2) whether the declarant was so situated that he might have
committed the crime; (3) the timing of the declaration; (4) the
spontaneity of the declaration; (5) the relationship between the declarant
and the party to whom the statement was made; and (6) the existence of
independent corroborative facts.
Woods v. State, 152 S.W.3d 105, 113 (Tex. Crim. App. 2004).
Herrera testified that the statements made in the recording were false and that her
boyfriend, Simmons, came up with the story and encouraged her to tell the District
Attorney’s office that her injuries were caused by a fight with other girls. As an impetus
for the fight, the story continued that Simmons had cheated on Herrera with these girls.
Herrera further noted that she and Simmons “practiced it and practiced it” prior to
making the recorded statements. The record reflected that the assault occurred on May
28, 2015, yet Herrera made the recorded statements approximately a year later in April
and June 2016. As for the reason she made the recorded statements, Herrera explained
that she did not want to get Simmons in trouble and that she was willing to go to jail for
filing a false report because she “thought he loved [her].”
The record included an eyewitness, Bobbie Barrett, who observed and described
the May 28, 2015 assault of Herrera by Simmons. This testimony contradicts the
statements made in the recording and undermines their veracity. Furthermore, Barrett
recounted Herrera’s fresh injuries, including fresh blood and scratches, which also
contradicts Herrera’s recorded statements that the injuries were sustained earlier in the
day from a fight with the above-mentioned girls.
Simmons v. State Page 4
Based on the foregoing testimony, and because Simmons does not cite to authority
holding that recorded statements similar to those made by Herrera are self-corroborating,
and because Simmons did not proffer independent, corroborating evidence, we cannot
say that the record contains sufficient corroborating circumstances to indicate the
trustworthiness of Herrera’s recorded statements. See id. at 113; see also Cunningham v.
State, 877 S.W.2d 310, 312 (Tex. Crim. App. 1994) (noting that a statement against penal
interest may be corroborated by “proof that the statement was against the declarant’s
interest to an unusual or devastating degree, that the declarant repeated his story often
and consistently, or that he could not have been motivated to falsify for the benefit of the
accused”). As such, we cannot conclude that the trial court abused its discretion by
excluding the recorded statements. See TEX. R. EVID. 803(24); see also Martinez, 327 S.W.3d
at 736; Montgomery, 810 S.W.2d at 391.
In any event, even if we were to conclude that Simmons sufficiently corroborated
Herrera’s recorded statements, the failure of the trial court to admit the evidence was
harmless. See TEX. R. APP. P. 44.2(b). This is because the substance of the recorded
statements was admitted elsewhere in the trial without objection. Cf. Lane v. State, 151
S.W.3d 188, 193 (Tex. Crim. App. 2004) (holding that any error in the admission of
evidence is cured when the same evidence is admitted elsewhere without objection); see
also Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (same). In fact, the State
Simmons v. State Page 5
and defense counsel spent a significant amount of time questioning Herrera about the
veracity, content, and circumstances surrounding the making of the recorded statements.
And to the extent that it can be argued that the recorded statements should have
been admitted for impeachment purposes, we note that Herrera did not deny making the
recorded statements and admitted to the content of the statements. Thus, the recorded
statements were not admissible under Texas Rule of Evidence 613(a)(4). See TEX. R. EVID.
613(a)(4) (“Extrinsic evidence of a witness’s prior inconsistent statement is not admissible
unless the witness is first examined about the statement and fails to unequivocally admit
making the statement.”). We overrule Simmons’s first issue.
II. THE JURY CHARGE
In his second issue, Simmons complains about errors in the jury charge. In
particular, he argues that: (1) the abstract portion of the charge only instructed the jury
regarding assault against a family member or household member and not the
commission of such an offense against a person with whom the defendant has a dating
relationship; (2) the abstract portion of the charge failed to provide statutory definitions
for family and household, and the charge did not provide a complete statutory definition
for dating relationship; and (3) the application paragraph omitted two of the three types
of relationships alleged in the indictment—namely, family or household member. In its
brief, the State concedes, and we agree, that the charge contains error. The State contends
that the error was not egregiously harmful to Simmons.
Simmons v. State Page 6
A. Applicable Law
In reviewing a jury-charge issue, an appellate court’s first duty is to determine
whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.
App. 1996). If error is found, the appellate court must analyze that error for harm.
Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was properly
preserved by objection, reversal will be necessary if the error is not harmless. Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, if error was not preserved
at trial by a proper objection, as was the case here, a reversal will be granted only if the
error present egregious harm. Id. To obtain a reversal for jury-charge error, Simmons
must have suffered actual harm and not just merely theoretical harm. Sanchez v. State,
376 S.W.3d 767, 775 (Tex. Crim. App. 2012); Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim.
App. 1986).
Because Simmons did not object to the charge in the trial court, we must analyze
any error for egregious harm. In doing so, we consider: (1) the entire jury charge; (2) the
state of the evidence, including the contested issues and the weight of the probative
evidence; (3) the final arguments of the parties; and (4) any other relevant information
revealed by the trial court as a whole. Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App.
2008). Jury-charge error is egregiously harmful if it affects the very basis of the case,
deprives the defendant of a valuable right, or vitally affects a defensive theory. Stuhler v.
Simmons v. State Page 7
State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121
(Tex. Crim. App. 2006).
B. Discussion
1. The Entire Jury Charge
In the instant case, Simmons was charged with assault family violence under
section 22.01(a)(1), which was enhanced by Simmons’s prior conviction for assault family
violence under section 22.01(b)(2)(A).2 See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(2)(A).
Section 22.01(a)(1) of the Penal Code provides that a person commits the offense of assault
if he “intentionally, knowingly, or recklessly causes bodily injury to another, including
the person’s spouse.” Id. § 22.01(a)(1). An offense under subsection (a)(1) may be
enhanced from a Class A misdemeanor to a third-degree felony if the offense is
committed against,
a person whose relationship to or association with the defendant is
described by Section 71.0021(b), 71.003, or 71.005 of the Family Code,[3] if:
2 The indictment provided that Simmons “intentionally, knowingly, and recklessly cause[d] bodily
injury to SELSA HERRERA, a member of the Defendant’s family or a member of the Defendant’s household
or a person with whom the Defendant has or has had a dating relationship, as described by Section 71.003
or 71.005 or 71.0021(b) of the Texas Family Code . . . .”
3Under section 71.0021(b) of the Family Code, a “dating relationship” is “a relationship between
individuals who have or have had a continuing relationship of a romantic or intimate nature.” TEX. FAM.
CODE ANN. § 71.0021(b) (West 2019). Section 71.0021(b) then provides more precise parameters for defining
a dating relationship. Id. § 71.0021(b)(1)-(3). Section 71.003 of the Family Code defines “[f]amily” as
“individuals related by consanguinity or affinity, as determined under Sections 573.022 and 573.024,
Government Code.” Id. § 71.003 (West 2019). And finally, under section 71.005 of the Family Code a
“[h]ousehold” is “a unit composed of persons living together in the same dwelling without regard to
whether they are related to each other.” Id. § 71.005 (West 2019).
Simmons v. State Page 8
(A) it is shown on the trial of the offense that the defendant has been
previously convicted of an offense under this chapter, Chapter 19, or
Section 20.03, 20.04, 21.11, or 25.11 against a person whose
relationship to or association with the defendant is described by
Section 71.0021(b), 71.003, or 71.005 of the Family Code.
Id. § 22.01(b)(2)(A).4
Simmons’s complaint with regard to the application portion of the charge is that
the trial court failed to instruct the jury on two of the three types of relationships alleged
in the indictment—family or household member. See TEX. FAM. CODE ANN. §§ 71.003,
71.005 (West 2019).
In the application portion of the charge, the trial court narrowed the scope of the
individuals to which the assaultive conduct was directed to that of someone in a dating
relationship with Simmons, as defined in section 71.0021(b). The application portion of
the charge did not reference the other two types of relationships alleged in the indictment
under sections 71.003 and 71.005 of the Family Code. In other words, the charge did not
track the language of the indictment or the operative statute. See TEX. PENAL CODE ANN.
§ 22.01(a)(1), (b)(2)(A).
Nevertheless, the State contends that the failure to reference the other two types
of relationships alleged in the indictment is not egregiously harmful because the record
did not contain any evidence demonstrating that Herrera and Simmons lived together or
4 Simmons stipulated that the enhancement under section 22.01(b)(2)(A) of the Penal Code was
“true.” See TEX. PENAL CODE ANN. § 22.01(b)(2)(A) (West 2019).
Simmons v. State Page 9
that they are family members. We agree. The record contains no evidence that Herrera
and Simmons are family members or that they lived together. Rather, the record only
reflects that they were in a dating relationship. We therefore cannot conclude that this
factor weighs in favor of a finding of egregious harm.
2. The State of the Evidence and Counsel’s Arguments
“One of [the] considerations in the determination of egregious harm is whether
the error related to a contested issue.” Hutch, 922 S.W.2d 166, 172 (Tex. Crim. App. 1996)
(quotations omitted). “When the error relates to an incidental defensive theory rather
than an obviously contested issue, the harm is less likely to be egregious.” Hines v. State,
535 S.W.3d 102, 114 (Tex. App.—Eastland 2017, pet. ref’d).
Again, as noted earlier, it was undisputed that Herrera and Simmons were in a
dating relationship. Both Herrera and her mother, Nellie Rodriguez, documented the
dating relationship between Simmons and Herrera, including when and where the
couple met and the number of times the couple went to church, went on dates, and were
together at each other’s house.
Furthermore, in its closing argument, the State mentioned the definition of “dating
relationship” and recounted that Herrera and Rodriguez established that Simmons and
Herrera “were boyfriend and girlfriend.” The crux of Simmons’s closing argument was
that Herrera was lying and that eyewitness Bobbie Barrett was creating memories from
what Herrera told her, rather than what she saw. Simmons’s counsel also argued that
Simmons v. State Page 10
the police did not do a thorough investigation. At no point during the trial did Simmons’s
counsel challenge the evidence or element of a dating relationship. Given the foregoing,
we find that these factors weigh against a finding of egregious harm. See Gelinas, 398
S.W.3d at 710; see also Allen, 253 S.W.3d at 264.
3. Other Relevant Information
Other than mentioning that the failure to include in the application paragraph two
of the three statutorily-defined relationships alleged in the indictment amounted a
comment on the evidence by the trial court, a contention we addressed in the factor
pertaining to the entire jury charge, we have not independently found, and Simmons
does not direct us to any, other relevant information that weighs in favor of a finding of
egregious harm. As such, we cannot say that this factor weighs in favor of a finding of
egregious harm. See Gelinas, 398 S.W.3d at 710; see also Allen, 253 S.W.3d at 264.
4. Conclusion
Despite the numerous errors in the charge, we cannot say that the errors affected
the very basis of the case, vitally affected Simmons’s defensive theory, or deprived
Simmons of a valuable right. See Stuhler, 218 S.W.3d at 719; Sanchez, 209 S.W.3d at 121.
While we are troubled that the charge did not completely track the indictment or the
operative statute, the fact remains that the errors complained about in this issue pertain
to the relationship between Herrera and Simmons—an element that was not contested at
trial. See Hutch, 922 S.W.2d at 172; see also Hines, 535 S.W.3d at 114. As mentioned earlier,
Simmons v. State Page 11
the focus of Simmons’s defense at trial was that Herrera is a convicted and admitted liar
and that she convinced Barrett to participate in the lies. We therefore cannot say that
Simmons was egregiously harmed by the charge in this case. See Almanza, 686 S.W.2d at
171; see also Sanchez, 376 S.W.3d at 775; Arline, 721 S.W.2d at 352. We overrule his second
issue.
III. THE TIME-PAYMENT FEE
In his third issue, Simmons contends that the court cost imposed for a time-
payment fee under section 133.103(b) and (d) of the Local Government Code is
unconstitutional. As such, Simmons requests that we modify the judgments by deleting
$22.50 of the court costs assessed.
Simmons did not object to the imposition of court costs in the trial court. The cost
bills were generated the same day as the judgment on August 2, 2018, but are not clearly
incorporated into the judgment. The judgment includes a blank for “court costs,” which
states “SEE BELOW.” The judgment also includes a section entitled, “Attachment A,
Order to Withdraw Funds, is incorporated into this judgment and made a part hereof.”
The box next to this section in each judgment is not checked.
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); see Bowden v. State, 502 S.W.3d 913, 914 (Tex. App.—Houston [14th Dist.] 2016,
Simmons v. State Page 12
pet. ref’d). Because the section 133.103 time-payment fees is a mandatory court cost
imposed upon conviction for a felony or misdemeanor, and because the judgment in this
case does not contain an itemization of the imposed court costs, we conclude that
preservation of this complaint was not required. See TEX. LOCAL GOV’T CODE ANN. §
133.103(a) (providing that “[a] person convicted of an offense shall pay, in addition to all
other costs, a fee of $25 if the person . . . has been convicted of a felony or misdemeanor;
and . . . pays any part of a fine, court costs, or restitution on or after the 31st day after the
date on which a judgment is entered assessing the fine, court costs, or restitution”);
London, 490 S.W.3d at 507; Bowden, 502 S.W.3d at 914. We now analyze the
constitutionality of the statute.
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); see also State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App.
2013). 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). Moreover “[a] reviewing court must 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) (internal citations omitted). The burden of
Simmons v. State Page 13
establishing the unconstitutionality of a statute falls on the party seeking to challenge the
statute. Rosseau, 396 S.W.3d at 557.
In the instant case, Simmons makes a facial challenge to the constitutionality of
section 133.103(b) and (d) of the Local Government Code. A facial challenge is an attack
on a statute itself, as opposed to a particular application. Peraza, 467 S.W.3d at 514. As
such, the challenger must establish that “no set of circumstances exists under which the
statute would be valid.” Id.; see Rosseau, 396 S.W.3d at 557 (holding that a party asserting
a facial challenge “must establish that the statute always operates unconstitutionally in
all possible circumstances”). “A facial challenge to a statute is the most difficult challenge
to mount successfully because the challenger must establish that no set of circumstances
exists under which the statute will be valid.” Santikos v. State, 836 S.W.2d 631, 633 (Tex.
Crim. App. 1992).
When analyzing a facial challenge to court costs, we consider only applications of
the statute that it authorizes or prohibits. See Peraza, 467 S.W.3d at 515. We do not
theorize where funds collected and distributed might be spent when evaluating the facial
constitutionality of a court cost. See id.
Section 133.103 of the Local Government Code contains provisions for the time-
payment fee. See TEX. LOCAL GOV’T CODE ANN. § 133.103. As mentioned above, a person
convicted of a felony or misdemeanor shall pay, in addition to all other costs, a $25 fee if
the person pays “any part of a fine, court costs, or restitution on or after the 31st day after
Simmons v. State Page 14
the date on which the judgment is entered assessing the fine, court costs, or restitution.”
Id. § 133.103(a). The statute directs the treasurer to allocate the fees collected in the
following three ways: (1) send fifty percent of the fees collected to the comptroller, who
shall then deposit the fees to the credit of the general revenue fund; (2) deposit ten percent
of the fees in the general fund of the county or municipality “for the purpose of improving
the efficiency of the administration of justice in the county or municipality; and (3)
deposit forty percent of the fees in the general revenue account of the county or
municipality. Id. § 133.103(b)-(d).
Simmons does not contest the percentage of the $25 time-payment fee that is
directed to the general fund of the county or municipality “for the purpose of improving
the efficiency of the administration of justice in the county or municipality.” Id. §
133.103(c). Rather, he challenges the remaining ninety percent of collected fees, which
are directed by subsections (b) and (d) to general funds that do not have a legitimate
criminal-justice purpose.
Several Texas courts have recently concluded that sections 133.103(b) and (d) are
unconstitutional. See Johnson v. State, 573 S.W.3d 328, 340 (Tex. App.—Houston [14th
Dist.] 2019, pet. filed); see also Dulin v. State, Nos. 03-18-00523-CR & 03-18-00524-CR, 583
S.W.3d 351, 2019 Tex. App. LEXIS 7084, at **4-5 (Tex. App.—Austin Aug. 14, 2019, pet.
filed); Kremplewski v. State, No. 01-19-00033-CR, ___ S.W.3d ___, 2019 Tex. App. LEXIS
6919, at **5-8 (Tex. App.—Houston [1st Dist.] Aug. 8, 2019, pet. filed); King v. State, No.
Simmons v. State Page 15
11-17-00179-CR, 2019 Tex. App. LEXIS 5902, at **13-14 (Tex. App.—Eastland July 11, 2019,
pet. filed) (mem. op., not designated for publication). These courts noted that the time-
payment fee is simply a late fee that does not reimburse the county or State for expenses
incurred in connection with the defendant’s criminal trial or criminal resources generally.
See Johnson, 573 S.W.3d at 340; see also Dulin, 2019 Tex. App. LEXIS 7084, at *4; Kremplewski,
2019 Tex. App. LEXIS 6919, at **5-7; King, 2019 Tex. App. LEXIS 5902, at *13.
Additionally, they concluded that subsections (b) and (d) do not direct funds to be used
for legitimate criminal-justice purposes; rather, the subsections direct collected funds into
a general revenue fund without limitation or restriction. See Johnson, 573 S.W.3d at 340;
see also Dulin, 2019 Tex. App. LEXIS 7084, at *4; Kremplewski, 2019 Tex. App. LEXIS 6919,
at **5-7; King, 2019 Tex. App. LEXIS 5902, at *13. Because the collected funds are sent into
a general-revenue fund and are not sufficiently related to the criminal-justice system or a
legitimate criminal-justice purpose, these courts concluded that subsections (b) and (d)
are unconstitutional. See Johnson, 573 S.W.3d at 340; Salinas v. State, 523 S.W.3d 103, 109
n.26 (Tex. Crim. App. 2017) (“Because the constitutional infirmity in this case is the
statute’s failure to direct the funds to be used in a manner that would make it a court cost
(i.e., for something that is a criminal justice purpose), the statute operates
unconstitutionally every time the fee is collected, making the statute unconstitutional on
its face.”); see also Dulin, 2019 Tex. App. LEXIS 7084, at *4; Kremplewski, 2019 Tex. App.
LEXIS 6919, at **5-7; King, 2019 Tex. App. LEXIS 5902, at *13.
Simmons v. State Page 16
We agree with our coordinate courts and adopt their reasoning herein.
Accordingly, we conclude that section 133.103(b) and (d) are facially unconstitutional.
Furthermore, our holding does not apply to section 133.103(c), which allocated ten
percent of the fee to the general fund of the county or municipality to be expended for
the purpose of improving the efficiency of the administration of justice in the county or
municipality. See Johnson, 573 S.W.3d at 340; see also Dulin, 2019 Tex. App. LEXIS 7084, at
**4-5; Kremplewski, 2019 Tex. App. LEXIS 6919, at **5-8; King, 2019 Tex. App. LEXIS 5902,
at *14. We therefore sustain Simmons’s third issue.
IV. CONCLUSION
Because we have sustained Simmons’s third issue and concluded that ninety
percent of the time-payment fee, as prescribed in section 133.103(b) and (d) of the Local
Government Code, is facially unconstitutional, we modify the trial court’s judgment to
change the time-payment fee from $25 to $2.50. We affirm the trial court’s judgment as
modified.
JOHN E. NEILL
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Neill
Affirmed as modified
Opinion delivered and filed November 27, 2019
Publish
[CR25]
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