                                                                  PD-0100-15 & PD-0101-15
             PD-0100&0101-15                                  COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
                                                            Transmitted 1/28/2015 2:56:02 PM
                                                              Accepted 1/29/2015 2:40:15 PM
                        No. ______________                                      ABEL ACOSTA
                                                                                        CLERK
                                 In the
            Texas Court of Criminal Appeals
                             At Austin
                       
                        No. 01-12-00690-CR
                        No. 01-12-00691-CR

                     In the Court of Appeals for the
                          First District of Texas
                                at Houston
                       

                 OSMIN PERAZA
                               Appellant
                                  V.
            THE STATE OF TEXAS
                                Appellee
                       

STATE’S PETITION FOR DISCRETIONARY REVIEW
                       

                                               DEVON ANDERSON
                                               District Attorney
                                               Harris County, Texas

                                               JESSICA AKINS
                                               Assistant District Attorney
  January 29, 2015                             1201 Franklin, Suite 600
                                               Houston, Texas 77002
                                               Telephone: 713.755.5826
                                               Fax: 713.755.5809
                                               akins_jessica@dao.hctx.net

                                               Counsel for Appellee

               ORAL ARGUMENT REQUESTED
                       IDENTIFICATION OF THE PARTIES

      Pursuant to TEX. R. APP. P. 68.4(a), a complete list of the names of all

interested parties is provided below.

      Victim:

             A.S.  a child victim under the age of 14

      Counsel for the State:

             Devon Anderson, District Attorney of Harris County
             Jessica Akins, Assistant District Attorney on appeal
             Sarah Bruchmiller, Assistant District Attorney at trial
             1201 Franklin, Suite 600, Houston, Texas 77002

             Lisa McMinn, State Prosecuting Attorney
             P. O. Box 13046, Austin, Texas 78711

      Appellant or criminal defendant:

             Osmin Peraza

      Counsel for Appellant:

             Emily DeToto  Counsel at trial
             Jani Maselli  Counsel on appeal
             Assistant Public Defender, Harris County, Texas
             1201 Franklin, 13th Floor, Houston, Texas 77002

      Trial Judge:

             Honorable Jan Krocker  Presiding Judge




                                         i
                                              TABLE OF CONTENTS


IDENTIFICATION OF THE PARTIES ................................................................................ i

INDEX OF AUTHORITIES ................................................................................................... iii

STATEMENT REGARDING ORAL ARGUMENT .......................................................... 1

STATEMENT OF THE CASE ................................................................................................. 1

STATEMENT OF THE PROCEDURAL HISTORY ......................................................... 1

REASONS FOR REVIEW ....................................................................................................... 2

STATEMENT OF FACTS ....................................................................................................... 2

SOLE GROUND FOR REVIEW ........................................................................................... 3

        The First Court of Appeals erred by finding the DNA record fee is an
         unconstitutional tax that violates the separation of powers clause

CONCLUSION .......................................................................................................................... 8

CERTIFICATE OF SERVICE ................................................................................................ 9

CERTIFICATE OF COMPLIANCE ..................................................................................... 9




                                                                  ii
                                          INDEX OF AUTHORITIES



CASES

Broyles v. State,
  688 S.W.2d 290 (1985) ......................................................................................................... 6
Ex Parte Carson,
  159 S.W.2d 126 (Tex. Crim. App. 1942) ........................................................................... 4
Peraza v. State,
  No. 01-1200069-CR, No. 01-12-00691-CR,
  2014 WL 7476214 (Tex. App.—Houston [1st Dist.] Dec. 30, 2014, pet. filed) ... 2-7
Salinas v. State,
  426 S.W.3d 318 (Tex. App.—
  Houston [14th Dist.] 2014, pet. granted) ................................................................. 1, 7, 8
State v. Claborn,
  870 P.2d 169 (Okl. Cr. 1994)................................................................................................ 5
State v. Johnson,
  478 S.E.2d 16 (N.C. App. 1996) ........................................................................................... 6
State v. Young,
  238 So.2d 589 (Fla. 1970) ..................................................................................................... 6


STATUTES

TEX. CODE CRIM PROC. ANN.
  art. 102.020 (West 2012)...................................................................................................... 7
TEX. CODE CRIM PROC. ANN.
  art. 102.020(a)(1) (West 2012) .......................................................................................4, 5
TEX. GOV’T CODE ANN.
  § 411.1471 (a)(1)(D) (West 2012)........................................................................................ 4
TEX. GOV’T CODE ANN.
  § 411.1471 (b) (West 2012) ................................................................................................... 5


                                                                iii
TEX. PENAL CODE ANN.
  § 22.021 (West 2012)............................................................................................................. 4


RULES

TEX. R. APP. P. 66.3(a)................................................................................................................ 2
TEX. R. APP. P. 66.3(e)................................................................................................................ 2
TEX. R. APP. P. 68.2(a) ............................................................................................................... 2
TEX. R. APP. P. 68.4(a) ................................................................................................................ i
TEX. R. APP. P. 68.4(d) ................................................................................................................ 1




                                                                   iv
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:


                STATEMENT REGARDING ORAL ARGUMENT

       Pursuant to TEX. R. APP. P. 68.4(d), the State requests oral argument.

Argument in this case is necessary because the court of appeals’ opinion is in

conflict with a recent case from the Fourteenth Court of Appeals, Salinas v. State,

426 S.W.3d 318 (Tex. App.—Houston [14th Dist.] 2014, pet. granted) (statute

requiring assessment of court costs was not facially unconstitutional under the

separation of powers clause of the Texas Constitution).


                             STATEMENT OF THE CASE

       Appellant was charged with two counts of aggravated sexual assault of a

child. (CR I 2; CR II 2)1. Appellant pled guilty to both offenses and the trial court

sentenced him to 25 years confinement on each case, to run concurrently. (CR I

59-60, 73; CR II 61-62, 75).


                STATEMENT OF THE PROCEDURAL HISTORY

       On December 30, 2014, a panel of the First Court of Appeals issued a

published opinion affirming these convictions, but modifying the judgments to

delete the $250 DNA record fee, finding it constitutes an unconstitutional tax. See


1
        “CR I” refers to the clerk’s record in cause number 1305438, and “CR II” refers to the
clerk’s record in cause number 1305439.
Peraza v. State, No. 01-1200069-CR, No. 01-12-00691-CR, 2014 WL 7476214 (Tex.

App.—Houston [1st Dist.] Dec. 30, 2014, pet. filed). The opinion was authored by

Justice Jennings, and joined by Justice Sharp. Id. Justice Brown filed a dissenting

opinion. Id. The State’s petition for discretionary review is timely filed. See TEX. R.

APP. P. 68.2(a).


                             REASONS FOR REVIEW

      This petition for discretionary review should be granted because the court

of appeals has issued an opinion in conflict with a decision from another court of

appeals. See TEX. R. APP. P. 66.3(a). Further, the justices on the panel of the First

Court of Appeals have disagreed on a material question of law necessary to the

court’s decision. See TEX. R. APP. P. 66.3(e).


                             STATEMENT OF FACTS

      Appellant was indicted for two offenses – aggravated sexual assault of a

child, for intentionally and knowingly causing the mouth of a child under the age

of 14, namely A.S., to contact his sexual organ, and aggravated sexual assault of a

child, for intentionally and knowingly causing the sexual organ of a child under

the age of 14, namely A.S., to contact appellant’s sexual organ. (CR I 2; CR II 2).

      An investigation was opened by CPS after A.S., the complainant, confided to

a friend at school that she was being sexually abused by appellant, her uncle.


                                           2
(State’s Exhibit Number 1; RR II 15; RR III 6). Appellant is married to the

complainant’s aunt, her father’s sister. (RR II 13-14). Appellant and his wife lived

in complainant’s home, for a period of 5 months, when theses offenses occurred.

(RR II 14-15).

      Complainant reported several sexual advances by appellant; she described

one incident where appellant physically put his penis inside her vagina, and

another time where he forced her mouth on his penis. (State’s Exhibit Number 1;

RR II 16-17; RR III 6-7). Appellant initially denied committing theses offenses, but

later admitted his guilt. (State’s Exhibit Number 1). He recalled committing the

offenses at night when his wife was sleeping and the complainant’s parents were

not around. (State’s Exhibit Number 1; RR III 6-7).

      Complainant had trouble in school after the assaults; her grades dropped,

she suffered from nightmares and attended weekly counseling sessions. (RR II 17-

19). Her father testified that appellant’s actions tore apart the family, so he moved

his family to Nashville, Tennessee. (RR II 19).


                         SOLE GROUND FOR REVIEW


     The First Court of Appeals erred by finding the DNA record fee is an
      unconstitutional tax that violates the separation of powers clause.


      Both the Texas Code of Criminal Procedure and the Texas Local

Government Code contain provisions authorizing court costs in criminal cases.

                                         3
Article 102.020(a)(1) of the Texas Code of Criminal Procedure authorizes court

costs in the amount of $250 when a person is convicted of an offense listed in

Section 411.1471(a)(1) of the Government Code. See TEX. CODE CRIM PROC. ANN.

art. 102.020(a)(1) (West 2012). Section 411.1471(a)(1) includes the offense of

aggravated sexual assault of a child. See TEX. GOV’T CODE ANN. § 411.1471(a)(1)(D)

(West 2012); TEX. PENAL CODE ANN. § 22.021 (West 2012) (aggravated sexual

assault of a child).

       Appellant’s court costs included the $250 fee and in his appeal to the First

Court, he challenged the assessment of this DNA record fee, claiming it was an

unconstitutional tax that violated the separation of powers clause of the Texas

Constitution. (CR I 75-77; CR II 77-79). The majority panel of the First of Court

of Appeals agreed and modified both judgments to delete the $250 DNA record

fee. Peraza, 2014 WL 7476214 at * 12-13.

       In support of their holding, the First Court of Appeals utilized Ex Parte

Carson, 159 S.W.2d 126 (Tex. Crim. App. 1942), for the proposition that court costs

in criminal proceedings must be necessary or incidental to the criminal case to be

considered a proper item of cost.          In Carson, the defendant challenged the

constitutionality of a statute assessing a sum of money for the purpose of

establishing and maintaining a county law library, which the Court found was not

a proper cost of prosecution. Id.


                                           4
      The First Court of Appeals concluded that the fee is an unconstitutional tax

because the revenue could possibly benefit other activities unrelated to the

statewide DNA database. Peraza, 2014 WL 7476214 at * 10-11. As pointed out in

the dissent, by doing so, the Court relied on web sites outside the record,

(appellant did not provide any record evidence to show how the funds are

expended) which essentially relieves appellant of his burden when bringing a

facial constitutional challenge. Peraza, 2014 WL 7476214 at * 15-16 (Brown, J.,

dissenting).

      The DNA record court cost is a one-time fee of $250; this statute allows law

enforcement to obtain a specimen from the defendant to create a DNA record.

TEX. CODE CRIM PROC. ANN. art. 102.020(a)(1) (West 2012); TEX. GOV’T CODE ANN.

§ 411.1471 (b) (West 2012). “As long as the statutory criminal assessments are

reasonably related to the costs of administering the criminal justice system, its

imposition will not render the courts ‘tax gatherers’ in violation of the separation

of powers doctrine.” State v. Claborn, 870 P.2d 169, 171 (Okl. Cr. 1994) (finding that

various assessments, including a fingerprinting fee, a victims compensation

assessment, and a drug assessment imposed on a criminal defendant convicted of

drug charges did not violate the separation of powers doctrine because they are

“reasonably related to the costs of administering the criminal justice system and

are not simply an executive branch tax”). The Court in Claborn noted that the


                                          5
separation of powers doctrine does not demand crystal clear distinctions between

branches of government, acknowledging that a certain amount of “blending” is

inevitable. Id. at 171.

       And several other jurisdictions have reached this same conclusion. See

Broyles v. State, 688 S.W.2d 290, 292 (1985) (holding that court costs of $302.25 for

DWI defendant, which included an additional $250 that was allocated in part to

programs relating to drunken driving, detoxification services and alcohol and drug

abuse rehabilitation, was constitutional since funds go to agencies society has

created to keep the highways safe from drunk drivers); State v. Young, 238 So.2d

589, 590 (Fla. 1970) (acknowledging difference in a civil filing fee and a post-

conviction criminal fee, and holding that statute imposing a one dollar charge for

law enforcement on every person convicted of a crime is not a violation of the

separation of powers doctrine because it is reasonable that one who is convicted of

a crime “should be made to share in the improvement of agencies that society has

had to employ in defense against the very acts for which he has been convicted”)

(emphasis added); State v. Johnson, 478 S.E.2d 16, 24 (N.C. App. 1996) (finding that a

$100 fee imposed on a criminal convicted of a drug charge to recompense the state

for costs of drug analysis was not a violation of the separation of powers doctrine

because the charge is reasonably related to the costs of administering the criminal

justice system).


                                          6
      The cost collected under Article 102.020 was to reimburse the State for

expenses incurred as a result of the felony prosecution, specifically costs spent to

obtain DNA specimens in certain cases. TEX. CODE CRIM PROC. ANN. art. 102.020

(West 2012). Since this statutory assessment is reasonably related to the costs of

administering the criminal justice system, the Court failed to demonstrate how the

statute authorizing this court cost is unconstitutional.      See Peraza, 2014 WL

7476214 at * 16 (Brown, J., dissenting) (Having determined that both portions of

the DNA Record Fee—the 65% that benefits the criminal-justice planning account

and the 35% that benefits the state highway fund—are sufficiently related to the

prosecution of a criminal case, I would conclude that appellant failed to satisfy his

burden of demonstrating that the DNA Record Fee is facially unconstitutional).

      The First Court acknowledges the Fourteenth Court of Appeals holding in

Salinas v. State, where the Court examined the consolidated court cost on this same

basis and found it was constitutional, but disagrees with its conclusion. See Peraza,

2014 WL 7476214 at * 12; Salinas, 426 S.W.3d at 325-328. (statute requiring

defendants convicted of a felony to pay $133 as a court cost, with those funds

allocated to 14 specified funds, was not facially unconstitutional under the

separation of powers clause of the Texas Constitution, on the theory that it

required courts to perform executive function by collecting a tax; there was no

evidence what the designated funds actually did with the money, and even if some


                                         7
of the fund recipients were invalid because they were not related to the justice

system, court costs could be collected and distributed in accordance with

severability principles to the admittedly appropriate funds specified in the

statute).

       Review of the Court of Appeal’s opinion in this case is necessary, as Osmin

Peraza v. State is a published opinion that is in conflict with a decision from the

Fourteenth Court of Appeals, Salinas, 426 S.W.3d at 325-328.2


                                        CONCLUSION

       It is respectfully requested that this petition be granted, the Court of

Appeals’ judgment on this issue be reversed, and the conviction be affirmed.

                                                         DEVON ANDERSON
                                                         District Attorney
                                                         Harris County, Texas

                                                         /s/   Jessica Akins
                                                         JESSICA AKINS
                                                         Assistant District Attorney
                                                         Harris County, Texas
                                                         1201 Franklin, Suite 600
                                                         Houston, Texas 77002
                                                         akins_jessica@dao.hctx.net
                                                         713.755.5826
                                                         TBC No. 24029415


2
        This Court has ordered and received briefing on the separation of powers issue as it
relates to court costs in Orlando Salinas v. State, PD-0419-14. It has not yet been submitted.


                                                 8
                          CERTIFICATE OF SERVICE

      This is to certify that a copy of this document has been sent to the following:

      Jani Maselli
      Assistant Public Defender
      Harris County, Texas
      1201 Franklin, 13th Floor
      Houston, Texas 77002
      Jani.Maselli@pdo.hctx.net

      Lisa C. McMinn
      State Prosecuting Attorney
      P. O. Box 13046
      Austin, Texas 78711
      Lisa.McMinn@SPA.texas.gov

                                                    /s/   Jessica Akins
                                                    JESSICA AKINS
                                                    Assistant District Attorney
                                                    Harris County, Texas
                                                    1201 Franklin, Suite 600
                                                    Houston, Texas 77002
                                                    akins_jessica@dao.hctx.net
                                                    713.755.5826
                                                    TBC No. 24029415


                      CERTIFICATE OF COMPLIANCE

      This is to certify that this computer-generated document has a word count
of 2290 words, based upon the representation provided by the word processing
program that was used to create the document.

                                                    /s/   Jessica Akins
Date: 1/28/2015


                                         9
APPENDIX A




    10
                                                                      less than fourteen years of age. After his arrest, appellant
                 2014 WL 7476214
   Only the Westlaw citation is currently available.                  failed a polygraph test and then admitted to a police
                                                                      officer that he had committed the offenses. He
     NOTICE: THIS OPINION HAS NOT BEEN                                subsequently pleaded guilty to committing the offenses.
     RELEASED FOR PUBLICATION IN THE                                  In his plea papers, appellant admitted that he had
PERMANENT LAW REPORTS. UNTIL RELEASED,                                intentionally and knowingly caused both the mouth of the
IT IS SUBJECT TO REVISION OR WITHDRAWAL.                              complainant, a person younger than fourteen years of age,
                   OPINION                                            to contact his sexual organ and the sexual organ of the
           Court of Appeals of Texas,                                 complainant to contact his sexual organ. In each case,
               Houston (1st Dist.                                     appellant     also     signed    written     admonishments,
                                                                      representing that he was mentally competent, understood
            Osmin Peraza, Appellant                                   the nature of the charge against him and the consequence
                         v.                                           of his plea, and freely and voluntarily pleaded guilty to
           The State of Texas, Appellee                               the offense. Appellant’s attorney signed the plea papers,
  NO. 01–12–00690–CR, NO. 01–12–00691–CR |                            affirming that she believed that appellant had executed his
        Opinion issued December 30, 2014                              pleas knowingly, voluntarily, and after a full discussion of
                                                                      the consequences of his pleas. The trial court found
On Appeal from the 184th District Court, Harris County,               sufficient evidence of appellant’s guilt in both cases and
Texas, Trial Court Case Nos. 1305438 and 1305439                      that appellant had entered his guilty pleas freely,
                                                                      knowingly, and voluntarily. And it admonished appellant
Attorneys and Law Firms                                               of his legal rights, accepted his guilty pleas, and ordered a
Jani Maselli, Assistant Public Defender, Houston, TX, for             presentence investigation in each case.
appellant.
                                                                      At the sentencing hearing, appellant moved to withdraw
Devon Anderson, District Attorney, Jessica Akins,                     his guilty pleas, arguing that they had been coerced. After
Assistant District Attorney, Houston, TX, for State.                  finding that appellant had pleaded guilty freely and
                                                                      voluntarily, the trial court denied his motion.
Panel consists of Justices Jennings, Sharp, and Brown.
                                                                      In its judgment of conviction in each case, the trial court
                                                                      ordered appellant to pay $634 in court costs, including, as
                                                                      part of the “Sheriff’s Fee,” a $50 charge for “serving
                                                                      capias”2 and a $5 charge for an arrest without a warrant or
                         OPINION                                      capias.3 The trial court also included within the $634 of
                                                                      court costs a $250 “DNA Record Fee.”4 Appellant then
Terry Jennings, Justice                                               filed his motions for new trial and in arrest of judgment,
*1 Appellant, Osmin Peraza, without an agreed                         which the trial court denied without a hearing.
punishment recommendation from the State, pleaded
guilty to two separate offenses of aggravated sexual
assault of a child less than fourteen years of age.1 The trial
court assessed his punishment at confinement for twenty-
five years for each offense, with the sentences to run                               Withdrawal of Guilty Pleas
concurrently. In four issues, appellant contends that each            *2 In his first issue, appellant argues that the trial court
judgment contains an erroneous and unsupported                        erred in denying his motion to withdraw his guilty pleas
“Sheriff’s Fee” and an unconstitutional “DNA Record                   because he did not enter the pleas voluntarily.
Fee,” the trial court erred in not permitting him to
withdraw his guilty pleas, and it erred in denying him a              A defendant may withdraw his guilty plea at any time
hearing on his motions for new trial and in arrest of                 before judgment is pronounced or the trial court takes the
judgment.                                                             plea under advisement. Jackson v. State, 590 S.W.2d 514,
                                                                      515 (Tex.Crim.App.1979); State v. Ellis, 976 S.W.2d 789,
We modify the trial court’s judgments and affirm as                   792 (Tex.App.–Houston [1st Dist.] 1998, no pet.). Once a
modified.                                                             plea has been taken under advisement or guilt has been
                                                                      adjudicated, however, a request to withdraw the plea is
                                                                      untimely, and the withdrawal of the plea is within the
                                                                      sound discretion of the trial court. Jackson, 590 S.W.2d at
                                                                      515; Ellis, 976 S.W.2d at 792. After the trial court has
                      Background                                      admonished the defendant and received the plea and
A Harris County Grand Jury issued a true bill of                      evidence, the passage of the case for a presentence
indictment, accusing appellant of committing two                      investigation constitutes taking the case under
separate offenses of aggravated sexual assault of a child             advisement. See Jackson, 590 S.W.2d at 514–15;

                                                                 11
Wissinger v. State, 702 S.W.2d 261, 262–63 (Tex.App.–
Houston [1st Dist.] 1985, pet. ref d). Because appellant             *3 In regard to appellant’s assertion that his guilty pleas
did not request that his guilty pleas be withdrawn until             were coerced, we note that “a plea is involuntary when it
after the trial court had taken his cases under advisement,          is ‘induced by threats, misrepresentations, or improper
we review the trial court’s denial of his motion to                  promises’ ” by the prosecutor, judge, or law enforcement
withdraw his pleas for an abuse of discretion.                       officials. Rios v. State, 377 S.W.3d 131, 136 (Tex.App.–
                                                                     Houston [1st Dist.] 2012, pet. ref’d) (quoting Kniatt v.
A trial court abuses its discretion when it acts arbitrarily,        State, 206 S.W.3d 657, 664 (Tex.Crim.App.2006)).
unreasonably, or without reference to any guiding rules or           Moreover, we presume the regularity of the judgments
principles. Lyles v. State, 850 S.W.2d 497, 502                      and proceedings, and appellant has the burden of
(Tex.Crim.App.1993); Montgomery v. State, 810 S.W.2d                 overcoming this presumption. Dusenberry, 915 S.W.2d at
372, 380 (Tex.Crim.App.1990). To show that the trial                 949.
court abused its discretion when it refused to allow
appellant to withdraw his guilty pleas, he must show that            Appellant presented no evidence that his guilty pleas were
“the trial court’s rulings lie outside the zone of reasonable        actually coerced. At his sentencing hearing, appellant’s
disagreement.” Jagaroo v. State, 180 S.W.3d 793, 802                 trial counsel suggested that appellant was coerced into
(Tex.App.–Houston [14th Dist.] 2005, pet. ref’d).                    pleading guilty because the jury was “on the way” and
                                                                     appellant had failed a polygraph test immediately before
Appellant first argues that there is no evidence that he             admitting to a police officer that he had committed the
voluntarily entered his pleas because there is no record of          sexual-assault offenses. The record, however, contains no
the trial court’s oral discussion with him of his legal              evidence that anyone coerced appellant into pleading
rights. We consider the entire record in determining                 guilty. Appellant voluntarily submitted to a polygraph
whether a plea was entered voluntarily. Fimberg v. State,            test, and neither his failure of the polygraph test, nor the
922 S.W.2d 205, 207 (Tex.App.–Houston [1st Dist.]                    immediacy of a jury trial, constituted a threat,
1996, pet. ref’d). A prima facie presumption that a                  misrepresentation, or improper promise. Thus, appellant
defendant voluntarily and knowingly pleaded guilty arises            has not overcome the presumption that he knowingly and
when the trial court finds that the defendant was properly           voluntarily entered his pleas.
admonished. See Martinez v. State, 981 S.W.2d 195, 197
(Tex.Crim.App.1998); see also TEX.CODE CRIM.                         When appellant requested to withdraw his guilty pleas,
PROC. ANN. art. 26.13(b) (Vernon Supp.2014) (guilty                  the trial court had taken his cases under advisement and
pleas may not be accepted unless mentally competent                  reset them for a punishment hearing. Because the trial
defendant enters plea freely and voluntarily). When the              court had already admonished appellant of his legal rights
record presents a prima facie showing that the plea was              and he had already voluntarily pleaded guilty, his request
entered voluntarily and knowingly, “the burden shifts to             to withdraw his pleas was untimely, and the trial court
the defendant to show that he entered the plea without               had discretion to accept or deny his motion. See Jackson,
understanding the consequences.” Arreola v. State, 207               590 S.W.2d at 515.
S.W.3d 387, 391 (Tex.App.–Houston [1st Dist.] 2006, no
pet.).                                                               Accordingly, we hold that the trial court did not err in
                                                                     denying appellant’s motion to withdraw his guilty pleas.
Here, the absence of a recorded plea colloquy, alone, does
not overcome the presumption that appellant was properly             We overrule appellant’s first issue.
admonished and understood the consequences and nature
of his pleas. See Dusenberry v. State, 915 S.W.2d 947,
949–52 (Tex.App.–Houston [1st Dist.] 1996, pet. ref’d)
(concluding guilty plea voluntary because defendant
received written admonishments of legal rights).                                        Court Costs for Arrest
Although the plea colloquy was not recorded, appellant               In his second issue, appellant argues that the trial court’s
received written admonishments of his legal rights,                  judgments are invalid because they each contain an
affirmed that he was mentally competent and understood               erroneous and unsupported “Sheriff’s Fee.” Appellant
the nature of the charges against him and the                        asserts that, “[a]t the very least, the $50.00 Sheriff’s Fee
consequences of his pleas, and agreed that he freely and             [for serving a capias] should be removed” from the $634
voluntarily pleaded guilty in each case. Further, the plea           in court costs assessed against him in each judgment.
papers show that appellant’s trial counsel and the trial
court both verified that appellant entered his guilty pleas          A criminal defendant must pay certain statutorily
freely, knowingly, and voluntarily, after having fully               mandated costs and fees, which vary depending on the
discussed his pleas and their consequences with counsel.             type of offense, the underlying facts, and the procedural
On this record, there is no evidence that appellant was not          history of the case. See TEX. GOV’T CODE ANN. §
properly admonished or failed to understand the                      102.021 (Vernon Supp.2014) (listing court costs upon
consequence or nature of his pleas.                                  conviction); TEX. LOC. GOV’T CODE ANN.. § 133.102

                                                                12
(Vernon Supp.2014) (same). The district court clerk must                      Constitutionality of “DNA Record Fee”
keep a record of each fee or cost charged for a service               In his third issue, appellant argues that the trial court’s
rendered in a criminal action or proceeding. TEX. CODE                judgments are invalid because they each assess an
CRIM. PROC. ANN. art. 103.009(a)(1) (Vernon 2006). If                 unconstitutional $250 “DNA Record Fee.” See TEX.
a criminal action is appealed, an officer of the court must           CODE CRIM. PROC. ANN. art. 102.020(a)(1) (Vernon
certify and sign a bill of costs and send it to the appellate         Supp.2014) (authorizing collection of $250 from persons
court. TEX. CODE CRIM. PROC. ANN. art. 103.006                        convicted of offenses listed in Texas Government Code
(Vernon 2006).                                                        section 411.1471(a)(1)). Appellant asserts that the fee
                                                                      required by article 102.020 is facially unconstitutional
Court costs do not constitute part of the guilt or sentence           under the separation of powers clause of the Texas
of a criminal defendant—“they are ‘a nonpunitive                      Constitution. See TEX. CONST. art. II, § 1.
recoupment of the costs of judicial resources expended in
connection with the trial of a case.’ ” Johnson v. State,             Whether a statute is facially constitutional is a question of
423 S.W.3d 385, 390 (Tex.Crim.App.2014) (quoting                      law that we review de novo. Ex Parte Lo, 424 S.W.3d 10,
Armstrong v. State, 340 S.W.3d 759, 767                               14 (Tex.Crim.App.2013); Ma loney v. State, 294 S.W.3d
(Tex.Crim.App.2011)). Therefore, we review the                        613, 626 (Tex.App.–Houston [1st Dist.] 2009, pet. ref’d).
assessment of court costs to determine whether there is a             When reviewing a constitutional challenge, we “presume
basis for the cost; we do not undertake an evidentiary-               that the statute is valid and that the legislature was neither
sufficiency review. Id.                                               unreasonable nor arbitrary in enacting it.” Curry v. State,
                                                                      186 S.W.3d 39, 42 (Tex.App.–Houston [1st Dist.] 2005,
*4 Here, the trial court clerk’s bills of costs each include a        no pet.); see also State v. Rosseau, 396 S.W.3d 550, 557
$50 charge for “serving capias” as part of the “Sheriff’s             (Tex.Crim.App.2013). If the statute can be construed in
Fee” assessed against appellant. See TEX. CODE CRIM.                  two different ways, one of which sustains its validity, we
PROC. ANN. art. 102.011(a)(2) (Vernon Supp.2014) (“A                  apply the interpretation that sustains its validity. Maloney,
defendant convicted of a felony or a misdemeanor shall                294 S.W.3d at 625.
pay ... $50 for executing or processing an issued arrest
warrant, capias, or capias pro fine....”). They also include          The party challenging the statute bears the burden of
a $5 charge for an arrest without a warrant/capias. See id.           establishing the statute’s unconstitutionality. Rosseau,
art. 102.011(a)(1) (authorizing $5 charge for arrest                  396 S.W.3d at 557; Curry, 186 S.W.3d at 42. “A facial
without warrant). The State agrees that the records do not            challenge to a statute is the most difficult challenge to
support the $50 charge for “serving capias.” And the                  mount successfully because the challenger must establish
records contain no basis to conclude that capiases were               that no set of circumstances exists under which the statute
issued for appellant’s arrest.                                        will be valid.” Santikos v. State, 836 S.W.2d 631, 633
                                                                      (Tex.Crim.App.1992); see also Rosseau, 396 S.W.3d at
The proper remedy for such an unsupported fee is for the              557. We “must uphold the challenged statute if it can be
appellate court to modify the judgment, not to grant a new            reasonably construed in a manner consistent with the
trial as appellant has requested. See TEX. R. APP. P.                 legislative intent and is not repugnant to the
43.2(b); French v. State, 830 S.W.2d 607, 609                         Constitution.” Curry, 186 S.W.3d at 42.
(Tex.Crim.App.1992) (agreeing “appellate court has
authority to reform a [trial court] judgment to ... make the          *5 Article 102.020(a)(1), titled “Costs Related to DNA
record speak the truth when the matter has been called to             Testing,” provides that a defendant convicted of certain
its attention by any source”); see also Nolan v. State, 39            offenses, including aggravated sexual assault of a child
S.W.3d 697, 698 (Tex.App.–Houston [1st Dist.] 2001, no                less than fourteen years of age, “shall pay as a cost of
pet.) (“An appellate court has the power to correct and               court: $250 [upon] conviction....” TEX. CODE CRIM.
reform a trial court judgment ‘to make the record speak               PROC. ANN. art. 102.020(a)(1). Thirty-five percent of
the truth when it has the necessary data and information to           the revenue received from this “DNA Record Fee” is
do so ....’ ” (quoting Asberry v. State, 813 S.W.2d 526,              dedicated to the state highway fund, while sixty-five
529 (Tex.App.–Dallas 1991, pet. ref’d))).                             percent of the revenue is dedicated to the general revenue
                                                                      fund of the criminal justice planning account. Id. art.
Because there is no basis in the record to support the $50            102.020(h).
charge for “serving capias” assessed against appellant as
part of the “Sheriff’s Fee” in both of appellant’s cases, we          Appellant argues that the “DNA Record Fee” is an
modify each judgment to delete the $50 charge from the                impressible tax collected by the judiciary, rather than a
court costs.                                                          legitimate court cost, because revenue from this fee is
                                                                      dedicated to the state highway fund and criminal justice
We sustain appellant’s second issue.                                  planning account and, thus, used for services that are
                                                                      neither necessary nor incidental to the trial of a criminal
                                                                      case. In support of his argument, appellant principally
                                                                      relies on Ex Parte Carson, 143 Tex.Crim. 498, 159

                                                                 13
S.W.2d 126 (1942).                                                   222.002 (Vernon 2011) (emphasis added). “[T]he
                                                                     department” referenced in section 222.002 is the Texas
In Carson, the Texas Court of Criminal Appeals                       Department of Transportation (“TxDOT”). Id. §
considered whether it was constitutionally permissible to            201.001(a)(2) (Vernon Supp.2014); see also State v.
impose a $1 fee as a court cost in all cases filed in                Montgomery Cnty., 338 S.W.3d 49, 56 (Tex.App.–
counties with more than eight district courts or more than           Beaumont 2011, pet. denied) (noting “ ‘[d]epartment’
three county courts at law. 159 S.W.2d at 127. The                   means the Department of Transportation”).
revenue collected from the $1 fee was directed to the
“County Law Library Fund” and “available to be used for              *6 Here, the “DNA Record Fee” revenue dedicated to the
certain costs and expenses in acquiring, maintaining and             state highway fund does not constitute money that is
operating a law library available to the judges of the               required, by either the Texas Constitution or federal law,
courts and to the attorneys of litigants.” Id. The court held        to be used for public roadways. See TEX. CODE CRIM.
that the fee constituted an unconstitutional tax, not a              PROC. ANN. art. 102.020(a)(1); TEX. TRANSP. CODE
legitimate court cost, because it was “neither necessary             ANN. § 222.001(a). Therefore, pursuant to section
nor incidental to the trial of a criminal case.” Id. at 127,         222.002, such money may be used for any function of
130. The court cautioned that to hold otherwise,                     TxDOT. See TEX. TRANSP. CODE ANN. §§ 201,001,
                                                                     222.002.
              would lead into fields of
              expenditures which may as well                         The stated mission of TxDOT is to “[w]ork with others to
              include the cost of the court houses,                  provide safe and reliable transportation solutions for
              the automobiles which officers use                     Texas.”5 Inside TxDOT: Mission, Goals and Values, TEX.
              to apprehend criminals and even                        DEP’T        TRANSP.,          http://www.txdot.gov/inside-
              the roads upon which they ride. If                     txdot/contact-us/mission.html (last visited Dec. 16, 2014);
              something so remote as a law                           see also Glenn T. Hasler, Dangerous Distractions: The
              library may be properly charged to                     Problematic Use of Wireless Communication Devices
              the litigant on the theory that it                     While Driving, 12 TEX. TECH. ADMIN. L.J. 155, 168
              better prepares the courts and the                     (2010) (“TxDOT’s purpose is to facilitate effective
              attorneys for the performance of                       movement throughout the state by providing safe,
              their duties, it occurs to us that we                  efficient transportation systems.”); Kyle R. Baum,
              might as logically tax an item of                      Comment, Rollin’ on Down the Rail: Can Texas Lead the
              cost for the education of such                         Nation in Developing Efficient High–Speed Rail this Time
              attorneys and judges and even the                      Around?, 45 TEX. TECH. L.REV. ONLINE 1, 2 (2013)
              endowments of the schools which                        (TxDOT’s “core mission is to ‘provide safe and efficient
              they attend.                                           movement of people and goods, enhance economic
                                                                     viability and improve the quality of life for people that
Id. at 127.                                                          travel in the state of Texas by maintaining existing
                                                                     roadways and collaborating with private and local entities
Appellant, likening the “DNA Record Fee” to the law                  to plan, design, build and maintain expanded
library fee in Carson, first asserts that the portion of the         transportation infrastructure’ ”).
“DNA Record Fee” dedicated to the state highway fund
“is used ... [to] provide services that are neither necessary        TxDOT is divided into twenty-two divisions, ranging
nor incidental to the trial of a criminal case.”                     from aviation to maritime to public transportation and
                                                                     rail, which are tasked with handling the responsibilities of
By law, “[m]oney that is required to be used for public              the department. See TEX. TRANSP. CODE ANN. §
roadways by the Texas Constitution or federal law and                201.202(a) (Vernon Supp.2014) (“The commission shall
that is deposited in the state treasury to the credit of the         organize the department into divisions to accomplish the
state highway fund, ... may be used only: (1) to improve             department’s functions ... including divisions for: (1)
the state highway system; (2) to mitigate adverse                    aviation; (2) highways and roads; and (3) public
environmental effects that result directly from                      transportation.”); Inside TxDOT: Divisions, TEX. DEP’T
construction or maintenance of a state highway by the                TRANSP.,             http://        www.txdot.gov/inside-
department; or (3) by the Department of Public Safety to             txdot/division.html (last visited Dec. 16, 2014) (“From
police the state highway system and to administer state              rail crossings to right of way, traffic cameras to travel
laws relating to traffic and safety on public roads.” TEX.           maps, and bridge inspections to bid opportunities,
TRANSP. CODE ANN. § 222.001(a) (Vernon 2011)                         TxDOT’s divisions handle a diverse range of services for
(emphasis added). Section 222.002 supplements this                   the agency.”).
instruction and provides that “[m]oney in the state
highway fund that is not required to be spent for public             TxDOT is responsible for developing a statewide
roadways by the Texas Constitution or federal law may be             transportation plan for addressing all modes of
used for any function performed by the department.” Id. §            transportation, including highways and turnpikes,

                                                                14
aviation, mass transportation, railroads, high-speed                  Supp.2014) (crime laboratory accreditation process).
railroads, and water traffic. See TEX. TRANSP. CODE                   Because “[s]ubchapter G governs the collection and
ANN. § 201.601(a) (Vernon Supp.2014); Robbins v.                      management of DNA samples, including [a]ppellant’s, by
Limestone Cnty., 114 Tex. 345, 268 S.W. 915, 920 (1925)               [the Texas Department of Public Safety (“DPS”) ]” and
(agency created to “formulate and execute plans and                   “[s]ection 411.0205 regulates the accreditation of forensic
policies for the location, construction and maintenance of            crime laboratories by DPS,” our dissenting colleague
a comprehensive system of state highways and public                   concludes that “the portion of the DNA Record Fee
roads”); see also TEX. TRANSP. CODE ANN. §§                           credited to the state highway fund is used to defray the
201.6011–622 (Vernon 2011 & Supp.2014) (listing plans                 costs associated with collecting, storing, and testing DNA
and projects of TxDOT); Brian K. Carroll, The Road                    samples” and, thus, “paying for DNA sampling and
Goes on Forever and the Claims Process Never Ends: An                 crime-lab accreditation is a valid, constitutional use of the
Approach for Success in Handling Texas Department of                  DNA Record Fee under Carson.”
Transportation Construction Claims, 13 TEX. TECH.
ADMIN. L.J. 233, 234 (2012) (“The projects range from                 In reaching his conclusion, however, our dissenting
small landscaping and guardrail projects to major                     colleague fails to consider the entire breadth of subchapter
interchanges.... TxDOT also supervises the construction               G. For instance, the “DNA Database” provided for in
of buildings for rest areas, area engineer’s offices, district        chapter 411, subchapter G is used for a wide variety of
offices, visitor’s centers, and other special purpose                 purposes, including “assisting in the recovery or
buildings....”).                                                      identification of human remains from a disaster or for
                                                                      humanitarian purposes,” “assisting in the identification of
*7 The court in Carson, which constitutes binding                     living or deceased missing persons,” “establishing a
precedent on this Court,6 held that fees which are “neither           population statistics database,” “assisting in identification
necessary nor incidental to the trial of a criminal case” are         research, forensic validation studies, or forensic protocol
not legitimate courts costs that may be assessed against a            development,” and “retesting to validate or update the
defendant. 159 S.W.2d at 127, 130. As discussed above,                original analysis or assisting in database or DNA
the responsibilities of TxDOT, which under the Code of                laboratory quality control.” Id. § 411.143(c) (Vernon
Criminal Procedure is entitled to use thirty-five percent of          2012). And the database contains DNA records from a
the revenue collected by the “DNA Record Fee,” do not                 whole host of individuals, such as “an unidentified
relate to the trial of a criminal case. Instead, the                  missing person or unidentified skeletal remains or body
responsibilities of TxDOT are far more remote from a                  parts,” “a close biological relative of a person who has
criminal trial than the county law libraries which were to            been reported missing,” and “a person at risk of becoming
be used by the judges and attorneys for trial preparation in          lost, such as a child or a person declared ... mentally
Carson. Thus, it cannot be reasonably concluded that the              incapacitated.” Id. § 411.142(g) (Vernon 2012). Notably,
portion of the revenue collected through the “DNA                     none of the above statutory purposes or the individual
Record Fee” and dedicated to the state highway fund                   records in the DNA Database relate to appellant’s
constitutes a proper court cost to be assessed against                criminal trial, despite the fact that thirty-five percent of
appellant or any other criminal defendant.                            the revenue collected via the “DNA Record Fee” may be
                                                                      utilized by DPS to “defray the cost of administering”
Accordingly, we hold that the portions of articles                    chapter 411, subchapter G.7 See id. § 411.145(c).
102.020(a)(1) and 102.020(h) requiring the collection of
the “DNA Record Fee” from appellant to be dedicated the               *8 The Texas Court of Criminal Appeals has clearly
state highway fund constitute an unconstitutional tax. See            favored a strict definition of what constitutes a legitimate
Carson, 159 S.W.2d at 127, 130. But see O’Bannon v.                   court cost that may be assessed against a criminal
State, 435 S.W.3d 378, 380–82 (Tex.App.–Houston [14th                 defendant. See Carson, 159 S.W.2d at 127; see also
Dist.] 2014, no pet.).                                                Salinas v. State, 426 S.W.3d 318, 329–30 (Tex.App.–
                                                                      Houston [14th Dist.] 2014, no pet.) (Jamison, J.,
We note that our dissenting colleague would not hold that             dissenting) (explaining Carson constitutes binding
the portion of the “DNA Record Fee” revenue dedicated                 precedent and “the Carson Court clearly favored a strict
to the state highway fund is an unconstitutional tax. In              definition of permissible ‘court costs’ in a criminal case”).
doing so, he relies on Texas Government Code section                  And the revenue collected via the “DNA Record Fee” to
411.145(c), which provides that “[a] fee collected under              be used by DPS for anything covered by chapter 411,
this section shall be deposited in the state treasury to the          subchapter G, or for crime laboratory accreditation under
credit of the state highway fund, and money deposited to              Government Code section 411.0205, is not closely
the state highway fund under this section and under                   enough related to appellant’s criminal trial to be
Articles 42.12 and 102.020(h), Code of Criminal                       considered constitutional.
Procedure, may be used only to defray the cost of
administering [chapter 411, subchapter G] and Section                 Appellant, again relying on Carson, next asserts that the
411.0205.” TEX. GOV’T CODE ANN. § 411.145(c)                          portion of the “DNA Record Fee” dedicated to the general
(Vernon 2012); see also id. § 411.0205 (Vernon                        revenue fund of the criminal justice planning account also

                                                                 15
constitutes an unconstitutional tax.                                      this section do not supplant state or local funds;

The criminal justice planning account is administered by                  (8) monitor and evaluate programs and projects
the Criminal Justice Division (“CJD”) of the Governor’s                   funded under this section, cooperate with and render
Office. See TEX. GOV’T CODE ANN. § 772.006(a)(2)                          technical assistance to state agencies and local
(Vernon 2012). Appellant asserts that the CJD’s “mission                  governments seeking to reduce crime or enhance the
is to create and support programs that protect people from                performance and operation of the criminal justice
crime, reduce the number of crimes committed, and to                      system, and collect from any state or local
promote accountability, efficiency, and effectiveness                     government entity information, data, statistics, or
within the criminal justice system.” He notes that it                     other material necessary to carry out the purposes of
“focuses on the enhancement of Texas’[s] capacity to                      this section;
prevent crime, provide service and treatment options,
enforce laws, train staff and volunteers, and the                         *9 (9) submit a biennial report to the legislature
restoration of crime victims to full physical, emotional                  reporting the division’s activities during the
and mental health.” Appellant argues that because “the                    preceding biennium including the comprehensive
courts [are] never mentioned” as part of the CJD’s                        state criminal justice plans and other studies,
mission or focus, the revenue collected via the “DNA                      evaluations, crime data analyses, reports, or
Record Fee” is not used by the CJD for services that are                  proposed legislation that the governor determines
necessary or incidental to the trial of a criminal case.                  appropriate or the legislature requests; and

The Texas Government Code reveals that the CJD was                        (10) perform other duties as necessary to carry out
established to:                                                           the duties listed in this subsection and adopt rules
                                                                          and procedures as necessary.
     (1) advise and assist the governor in developing
     policies, plans, programs, and proposed legislation            Id.
     for improving the coordination, administration, and
     effectiveness of the criminal justice system;                  In regard to the CJD’s administration of the criminal
                                                                    justice planning account, the legislature determines and
     (2) administer the criminal justice planning fund;             appropriates the necessary amount of money from the
                                                                    criminal justice planning fund to the CJD. TEX.CODE
     (3) prepare a state comprehensive criminal justice             CRIM. PROC. ANN. art. 102.056(a) (Vernon
     plan, to update the plan annually based on an                  Supp.2014). The CJD then uses this money to “[s]upport
     analysis of the state’s criminal justice problems and          a wide range of projects designed to reduce crime and
     needs, and to encourage identical or substantially             improve the criminal and juvenile justice systems.”8 CJD
     similar local and regional comprehensive criminal              Funding     Sources,      OFFICE       OF     GOVERNOR,
     justice planning efforts;                                      CRIMINAL JUSTICE DIV., 1, http://governor.state.tx.us/
                                                                    files/cjd/CJD_Funding_Sources.pdf (last visited Dec. 16,
     (4) establish goals, priorities, and standards for             2014); see also TEX. CODE CRIM. PROC. ANN. art.
     programs and projects to improve the administration            102.056(a) (money from criminal justice planning fund
     of justice and the efficiency of law enforcement, the          used by CJD “for state and local criminal justice
     judicial system, prosecution, criminal defense, and            projects,” with not less than twenty percent of such
     adult and juvenile corrections and rehabilitation;             money going to juvenile justice programs); Financial
                                                                    Services: Grants over $25,000 Administered by the Office
     (5) award grants to state agencies, units of local             of the Governor, OFFICE OF GOVERNOR,
     government, school districts, and private, nonprofit           http://governor.state.tx.us/financial-services/grants/ (last
     corporations from the criminal justice planning fund           visited Dec. 16, 2014) (grants from criminal justice
     for programs and projects on consideration of the              planning fund “support a wide range of projects designed
     goals, priorities, and standards recommended by the            to reduce crime and improve the criminal [and] juvenile
     Criminal Justice Policy Council;                               justice systems”); Helpful Questions and Answers for
                                                                    Managing Grants, OFFICE OF GOVERNOR,
     (6) apply for, obtain, and allocate for the purposes of        CRIMINAL JUSTICE DIV., B–12 (Feb.2014),
     this section any federal or other funds which may be           http://governor.state.tx.us/
     made available for programs and projects that                  files/cjd/CJD_Guide_to_Grants_v7.pdf (same).
     address the goals, priorities, and standards
     established in local and regional comprehensive                Numerous entities are eligible to apply for grants from the
     criminal justice planning efforts or assist those              criminal justice planning fund, including “[s]tate
     efforts;                                                       agencies, units of local government, independent school
                                                                    districts, nonprofit corporations, Native American tribes,
     (7) administer the funds provided by this section in           COGs, universities, colleges, hospital districts, juvenile
     such a manner as to ensure that grants received under          boards, regional education service centers, community
                                                               16
supervision and corrections departments, crime control               roads upon which they ride.” 159 S.W.2d at 127.
and prevention districts, and faith-based organizations.”
CJD Funding Sources, supra, at 1; see also TEX. GOV’T                Here, sixty-five percent of the revenue received through
CODE ANN. § 772.006(a)(5) (CJD awards grants from                    the “DNA Record Fee” is dedicated by law to the general
criminal justice planning fund “to state agencies, units of          revenue fund of the criminal justice planning account in
local government, school districts, and private, nonprofit           order to “[s]upport a wide range of projects designed to
corporations”); Press Release, Office of Governor, Gov.              reduce crime and improve the criminal and juvenile
Perry Awards $195,000 From State Criminal Justice                    justice systems.” See CJD Funding Sources, supra, at 1.
Planning      Funds     (Jan.     28,     2008),     http://         The recipients of money from the criminal justice
governor.state.tx.us/news/press-release/5133/        (grant          planning fund are vastly diverse and range from state
recipients from criminal justice planning fund “include              agencies to schools to hospitals and faith-based
local units of government, independent school districts,             organizations. Notably, the money from the criminal
non-profit corporations, hospitals, universities, colleges,          justice planning fund is not required to be directed to the
community supervision and corrections departments, law               courts or to services necessarily or incidentally related to
enforcement agencies and councils of governments”).                  criminal trials. And often times such revenue is given to
                                                                     programs that, as the court in Carson specifically noted,
*10 Moreover, the CJD has awarded money from the fund                could not possibly relate to legitimate court costs. See 159
to a variety of recipients, such as the Alamo Area Council           S.W.2d at 127 (costs for training and education not
of Governments for Regional Police Training Academy,                 legitimate court costs that may be assessed against
the Bastrop County Women’s Shelter for SAINT: Sexual                 criminal defendants). Accordingly, we cannot conclude
Assault Integrated Nursing Team, Fort Bend County for                that the criminal justice planning account, which is
the “Saved by the Bell” Delinquency Reduction Program,               funded by the “DNA Record Fee,” passes constitutional
the Katy Christian Ministries for Counseling Services for            muster. See Salinas, 426 S.W.3d at 330–31 (Jamison, J.,
Victims of Domestic Violence, and The Family Place for               dissenting) (concluding court costs assessed pursuant to
S.T.A.R.T. (Students Tackling Abusive Relationships                  Texas Local Government Code section 133.102, which
Together). See, e.g., Press Release, Office of Governor              directs approximately thirteen percent of its revenue to the
Tex., Gov. Perry Awards $8 Million in Grants to Improve              criminal justice planning fund, unconstitutional).
Criminal Justice Systems (Sept. 10, 2008), http://
governor.state.tx.us/news/press-release/11114/      (listing         The State argues that appellant has not shown that the
seventy-nine recipients that received more than $8 million           “DNA Record Fee” is unconstitutional because it “is a
in grants from criminal justice planning fund); Press                one-time fee of $250” and “is certainly applicable to
Release, Office of the Governor of Tex., Gov. Perry                  appellant, as he was court-ordered to provide a DNA
Awards $195,000 From State Criminal Justice Planning                 specimen in both sexual assault cases.” The State asserts
Fund, supra (stating more than $195,000 in grants from               that the “DNA Record Fee” was ordered “to reimburse
criminal justice planning fund awarded to Wood County                the State for expenses incurred as a result of the felony
for Wood County Rural Prosecutor Project and                         prosecution [of appellant], specifically costs spent to
BeyondMissing Inc. for Texas Amber Alert Network);                   obtain DNA specimens in certain cases.” And “[s]ince
Press Release, Office of Governor, Governor Rick Perry               this statutory assessment is reasonably related to the costs
Announces Statewide Grant to Reduce School Dropouts                  of administering the criminal justice system, appellant has
(Nov. 7, 2001), http:// governor.state.tx.us/ news/press-            failed to show how the statute authorizing this court cost
release/4229/ (announcing $168,146 criminal justice                  is unconstitutional.”
planning fund grant to Behavioral Health Institute of
Waco to assist with “efforts to reduce school failure,               DPS is required to collect a DNA specimen from persons
dropout rates, and juvenile crime”); see also Helpful                convicted of certain crimes, including aggravated sexual
Questions and Answers for Managing Grants, supra, at                 assault of a child less than fourteen years of age, and
B–12 (listing activities eligible for grants from criminal           maintain a database that includes, among others, these
justice planning fund, such as job training, professional            DNA specimens. See TEX. GOV’T CODE ANN. §
therapy and counseling, school based delinquency                     411.142 (directing DPS to maintain “computerized
prevention, substance abuse, and peer support groups).               database that serves as the central depository in the state
                                                                     for DNA records”); id. § 411.1471 (Vernon 2012)
With this background in mind, we turn to the propriety of            (requiring collection of DNA specimen from those
the portion of the revenue collected via the “DNA Record             convicted of certain crimes). As asserted by the State,
Fee” dedicated to the criminal justice planning account              funds from the criminal justice planning account may be
and to be used by the CJD. As the Texas Court of                     used by the CJD to reimburse DPS and other law
Criminal Appeals explained in Carson, adopting a less                enforcement agencies for expenses incurred in performing
than strict definition of what constitutes a legitimate court        duties required by Texas Government Code section
cost “would lead into fields of expenditures which may as            411.1471, namely the taking of a DNA specimen from a
well include the cost of the court houses, the automobiles           defendant, preserving of the specimen, and maintaining a
which officers use to apprehend criminals and even the               collection of the specimen. See TEX.CODE CRIM.

                                                                17
PROC. ANN. art. 102.056(e); TEX. GOV’T CODE                            account provides services that are necessary or incidental
ANN. § 411.1471.                                                       to the trial of a criminal defendant’s case. See Carson,
                                                                       159 S.W.2d at 127, 130; see also Salinas, 426 S.W.3d at
*11 Notably though, reimbursement for expenses related                 332 (Jamison, J., dissenting) (“Although it appears some
to the collection and maintenance of DNA specimens is                  of the funds that go to the fair defense account may
not automatic or guaranteed under Texas Code of                        ultimately help provide counsel for indigent criminal
Criminal Procedure article 102.056(e); the statute only                defendants, it does not appear that this is the sole use that
provides that DPS will be reimbursed with funds from the               can be made for these funds.... It therefore cannot be said
criminal justice planning account after it complies with               that either the training fund or the fair defense account are
certain procedures. See TEX. CODE CRIM. PROC.                          necessary or incidental expenses in the trial of appellant’s
ANN. art. 102.056(e) (law enforcement agency, incurring                criminal case.”).
expenses in previous calendar quarter, must, on first day
after end of calendar quarter, send certified statement of             Accordingly, we hold that the portions of article
costs incurred to CJD). Thus, although appellant provided              102.020(a)(1) and article 102.020(h) requiring the
a DNA specimen to DPS in accordance with section                       collection of the “DNA Record Fee” from appellant to be
411.1471 in conjunction with his cases, it cannot be                   dedicated to the general revenue fund of the criminal
assumed that DPS was automatically reimbursed by virtue                justice planning account constitute an unconstitutional
of the “DNA Record Fee” for any expenses associated                    tax. See Carson, 159 S.W.2d at 127, 130. But see
with the collection of his specimen.                                   O’Bannon, 435 S.W.3d at 381.

Further, we note that even if we presume that some of the              *12 We note that our sister court has recently criticized
revenue collected pursuant to the “DNA Record Fee” is                  the reasoning of the Texas Court of Criminal Appeals
actually used to reimburse DPS or other law enforcement                opinion in Carson as “ ‘both abbreviated and bereft of
agencies for collecting DNA specimens from criminal                    citations to supporting authority.’ ” O’Bannon, 435
defendants, preserving such specimens, and maintaining a               S.W.3d at 381 (quoting Salinas, 426 S.W.3d at 326). In
record of such collections, it is readily apparent that this is        “[a]ssuming arguendo that Carson requires a statute
not the only way in which the revenue is used. Sixty-five              imposing court costs to be ‘necessary or incidental to the
percent of the revenue collected through the “DNA                      trial of a criminal case,’ ” the Fourteenth Court of
Record Fee” is dedicated to the general revenue fund of                Appeals held that the defendant’s facial constitutional
the criminal justice planning account. As outlined above,              challenge to article 102.020 failed because he did not
money in the criminal justice planning fund is given to a              “establish[ ] how the funds will be used once they are
vast number of diverse entities, almost of none of which               distributed to the state highway fund and the criminal
have any relation to the collection of a defendant’s DNA               justice planning account.” Id. at 381–82. It asserted that
specimen or a criminal trial. See, e.g., TEX. CODE                     the defendant merely “infer[ed]” that revenue collected
CRIM. PROC. ANN. art. 102.056(a) (money from                           pursuant to article 102.020(a)(1) will “flow ‘directly to
criminal justice planning fund is used for “state and local            the executive branch [to be] used for policy purposes’ ” or
criminal justice projects,” with not less than twenty                  to the state highway fund, “not [to] be used for purposes
percent of such funds directed to juvenile justice                     necessary or incidental to DNA collection or testing.” Id.
programs); TEX. GOV’T CODE ANN. § 772.006(a)(5)                        at 382.
(CJD awards grants from criminal justice planning fund
“to state agencies, units of local government, school                  We respectfully disagree with our sister court for the
districts, and private, nonprofit corporations”); Press                reasons outlined above. In short, we first note that the
Release, Office of Governor, Gov. Perry Awards $8                      reasoning of the Texas Court of Criminal Appeals in
Million in Grants to Improve Criminal Justice Systems,                 Carson is sound and it constitutes binding precedent upon
supra (listing seventy-nine recipients that received more              it and lower courts. See Reed v. Buck, 370 S.W.2d 867,
than $8 million in grants from criminal justice planning               870–71 (Tex.1963) (explaining simply because certain
fund); Press Release, Office of Governor, Gov. Perry                   cases had “not been cited in recent years,” such “ancient
Awards $195,000 from State Criminal Justice Planning                   cases” do not “just fade[ ] away”; instead, “unless there is
Funds, supra (stating more than $195,000 in grants from                some good reason for overruling them, they should not be
criminal justice planning fund awarded to Wood County                  disregarded”); Purchase v. State, 84 S.W.3d 696, 701
for Wood County Rural Prosecutor Project and                           (Tex.App.–Houston [1st Dist.] 2002, pet. ref’d) (“[W]e
BeyondMissing Inc. for Texas Amber Alert Network);                     are bound by the decisions of our state’s highest criminal
Press Release, Office of Governor, Governor Rick Perry                 court.”). Second, we note that criminal defendants
Announces Statewide Grant to Reduce School Dropouts,                   similarly situated to appellant are not asking appellate
supra (announcing $168,146 criminal justice planning                   courts to “infer” how the revenue from the “DNA Record
fund grant to Behavioral Health Institute of Waco to assist            Fee” will be directed. As discussed above, the revenue, by
with “efforts to reduce school failure, dropout rates, and             statute, is dedicated by law for expenditures that are far
juvenile crime”). Thus, it cannot be reasonably concluded              removed from actual “court costs.” A plain reading of the
that the revenue dedicated to the criminal justice planning            pertinent statutes reveals this undeniable fact.

                                                                  18
                                                                    requires him to “establish that no set of circumstances
We sustain appellant’s third issue.9                                exists under which the statute will be valid.” Santikos v.
                                                                    State, 836 S.W.2d 631, 633 (Tex.Crim.App.1992); see
                                                                    also State v. Rosseau, 396 S.W.3d 550, 557
                                                                    (Tex.Crim.App.2013). In my view, Appellant has not
                                                                    shown that every application of the statue violates the
                        Conclusion                                  Carson standard. I would, therefore, affirm the
Having held that the “DNA Record Fee” assessed against              constitutionality of the fee.
appellant pursuant to article 102.020(a)(1) and article
102.020(h) constitutes an unconstitutional tax, we modify
each judgment to delete the $250 charge from the
assessed court costs. See Cates v. State, 402 S.W.3d 250,           A. Reviewing a facial challenge
252 (Tex.Crim.App.2013) (holding proper remedy when                 When reviewing the constitutionality of a statute, “an
trial court erroneously includes amounts as court costs is          appellate court must presume that the statute is valid and
to modify judgment to delete erroneous amounts);                    that the legislature was neither unreasonable nor arbitrary
Sturdivant v. State, 445 S.W.3d 435, 443 (Tex.App.–                 in enacting it.” Curry v. State, 186 S.W.3d 39, 42
Houston [1st Dist.] 2014, pet. ref d) (holding trial court          (Tex.App.–Houston [1st Dist.] 2005, no pet.) (citing Ex
erroneously included attorney pro tern fees as court costs          parte      Granviel,     561      S.W.2d      503,     511
and modifying judgment accordingly); see also TEX. R.               (Tex.Crim.App.1978)). A reviewing court must make
APP. P. 43.2(b).                                                    every reasonable presumption in favor of the statute’s
                                                                    constitutionality, unless the contrary is clearly shown.
Further, as noted above, having held that there is no basis         Granviel, 561 S.W.2d at 511; see TEX. GOV’T CODE
in the record to support the charge for “serving capias,”           ANN. § 311.021 (West 2013) (noting that courts presume
we also modify each judgment to delete the $50 charge               “compliance” with Texas and United States
from the assessed court costs. See French, 830 S.W.2d at            Constitutions).
609 (agreeing “appellate court has authority to reform a
[trial court] judgment to ... make the record speak the             To prevail, the party asserting a facial challenge “must
truth when the matter has been called to its attention by           establish    that    the     statute    always     operates
any source”); Nolan, 39 S.W.3d at 698 (“An appellate                unconstitutionally in all possible circumstances.”
court has the power to correct and reform a trial court             Rosseau, 396 S.W.3d at 557. When construing a statute,
judgment ‘to make the record speak the truth when it has            courts consider, among other factors, the object sought to
the necessary data and information to do so ....’ ” (quoting        be attained by the legislation, laws on the same or similar
Asberry, 813 S.W.2d at 529)); see also TEX. R. APP. P.              subjects, and the consequences of a particular
43.2(b).                                                            construction. TEX. GOV’T CODE ANN. § 311.023
                                                                    (West 2013); see State v. Neesley, 239 S.W.3d 780, 784
*13 We affirm the judgment of the trial court as modified.          (Tex.Crim.App.2007); Nguyen v. State, 1 S.W.3d 694,
                                                                    696–97 (Tex.Crim.App.1999); see also Dowthitt v. State,
                                                                    931 S.W.2d 244, 258 (Tex.Crim.App.1996). If a statute
Harvey Brown, Justice, Concurring and Dissenting                    can be reasonably interpreted in a manner that does not
                                                                    offend the constitution, a reviewing court must overrule a
I join with the Court’s conclusions that the trial court did        facial challenge to the statute’s constitutionality. Curry,
not abuse its discretion in denying Appellant’s motion to           186 S.W.3d at 42.
withdraw his guilty pleas and that the judgment should be
modified, striking the unsupported “Sheriff’s Fee”
assessed in both cases. However, I disagree with the
Court’s conclusion that the “DNA Record Fee”1 is                    B. Constitutionality of the DNA Record Fee benefiting
unconstitutional.                                                   the criminal-justice planning account
                                                                    *14 Appellant argues that the DNA Record Fee
                                                                    unconstitutionally benefits the criminal-justice planning
                                                                    account because the account is “too remote” to be
                                                                    considered a necessary or incidental cost of prosecuting a
       Facial Challenge to the DNA Record Fee                       criminal case as required under Carson, 159 S.W.2d at
Appellant argues that the statute authorizing collection of         127 (concluding that law library fee is remote and
the fee is facially unconstitutional under the separation-          unconstitutional). The Court agrees and cites several
of-powers clause of the Texas Constitution. TEX.                    possible uses of money from the criminal-justice planning
CONST. art. II, § 1. Under that provision, a statute                account that are not related to the prosecution of a
authorizing a court to collect costs “neither necessary nor         criminal case. This approach is contrary to the standard
incidental to the trial of a criminal case” is not valid. Ex        that applies to claims that a statute is facially
parte Carson, 143 Tex.Crim. 498, 159 S.W.2d 126, 127                unconstitutional because (1) it diminishes the challenger’s
(1942). Appellant makes only a facial challenge, which
                                                               19
burden to demonstrate that all—not some—applications                           through a grant [of money from the
of a statute are unconstitutional; and (2) it runs afoul of                    criminal-justice planning account]
precedent by favoring an unconstitutional reading over a                       shall      reimburse     the     law
constitutional reading when construing statutes. I would                       enforcement agency for the costs
construe the criminal-justice planning account in its                          not later than the 30th day after the
statutory context, situated among related statutes, and                        date the certified statement is
conclude that Appellant has not demonstrated that all                          received. If the criminal justice
applications of the statute are unconstitutional under the                     division does not reimburse the law
Carson standard.                                                               enforcement agency before the 90th
                                                                               day after the date the certified
The Department of Public Safety (“DPS”) is required to                         statement is received, the agency is
collect a DNA specimen from every person charged with                          not required to perform duties
certain categories of crimes, including the crime involved                     imposed under Section 411.1471 or
here—aggravated sexual assault of a child under 14 years                       Subchapter B–1, Chapter 420,
of age—and to create a database cataloging the DNA                             Government Code, as applicable,
specimens. TEX. GOV’T CODE ANN. § 411.142 (West                                until the agency has been
2012) (directing DPS to maintain “computerized database                        compensated for all costs for which
that serves as the central depository in the state for DNA                     the agency has submitted a certified
records” that is compatible with FBI’s national DNA                            statement under this subsection.
identification index system); id. § 411.1471 (West 2012)
(requiring collection of DNA specimens from people                 Id. Thus, the Court’s skepticism is unjustified given the
charged with or convicted of certain crimes, including             wording of the statute regarding reimbursement to fund
aggravated sexual assault of child under 14 years of age);         the DNA project.
TEX. PENAL CODE ANN. § 22.021 (West Supp.2014)
(defining aggravated sexual assault of child under 14              The Court also insists that, even if DPS were reimbursed,
years of age). The criminal-justice planning account               the fee is nevertheless unconstitutional because the
allocates funds toward the collection and management of            criminal-justice planning account funds other unrelated
this statewide criminal DNA database. See TEX.CODE                 projects. Following this analysis, it would be enough for a
CRIM. PROC. ANN. art. 102.056 (West Supp.2014).                    party bringing a facial constitutional challenge to show
Specifically, subsection (e) of article 102.056 directs the        that some possible applications of a statute are
Legislature to                                                     unconstitutional to justify invalidating every application
                                                                   of that statute. That is the wrong standard. See Santikos,
            determine and appropriate the                          836 S.W.2d at 633 (“[T]he challenger must establish that
            necessary amount from the criminal                     no set of circumstances exists under which the statute will
            justice planning account to the                        be valid.”). While money from the criminal-justice
            criminal justice division of the                       planning account apparently funds other programs in
            governor’s        office       for                     addition to the DNA database, Appellant presents no
            reimbursement in the form of                           evidence that the DNA Record Fee revenue does anything
            grants to the Department of Public                     more than reimburse the criminal-justice planning account
            Safety of the State of Texas and                       for its DNA-database expenditures. Appellant appears to
            other law enforcement agencies for                     concede that reimbursement for these expenditures would
            expenses incurred in performing                        not violate Carson. I agree.
            duties imposed on those agencies
            under     Section   411.1471    or                     *15 I would hold that collecting the DNA Record Fee to
            Subchapter B–1, Chapter 420,                           benefit the criminal-justice planning account is
            Government Code, as applicable.                        constitutional because these funds may be allocated to the
                                                                   statewide criminal DNA database. Because such an
Id.                                                                allocation would be constitutional, Appellant fails to meet
                                                                   his burden of showing that every application of the statute
After looking outside the record to press releases and web         would result in constitutional injury. See Rosseau, 396
sites, the Court insists that “it cannot be assumed that           S.W.3d at 557 (noting moving party has burden of
DPS was automatically reimbursed by virtue of the ‘DNA             demonstrating statute’s unconstitutionality in “all its
Record Fee’ for any expenses associated with the                   possible applications.”). Accordingly, I would conclude
collection of [Appellant’s] sample” and therefore the fee          that Appellant has failed to demonstrate that the portion
is an unconstitutional tax. This conclusion does not               of the DNA Record Fee that benefits the criminal-justice
account for the remainder of subsection (e), which                 planning account is an unconstitutional tax.
continues:

            The    criminal    justice   division

                                                              20
C. Constitutionality of the DNA Record Fee benefiting                     Fee revenue in the state highway fund to DPS for DNA
the state highway fund                                                    sampling and crime-lab accreditation prevails over the
Likewise, Appellant has not demonstrated that the portion                 general statute relied upon by the Court.
of the DNA Record Fee that benefits the state highway
fund is facially invalid. Pursuant to article 102.020(h) of               I would further hold that paying for DNA sampling and
the Texas Code of Criminal Procedure, a portion of                        crime-lab accreditation is a valid, constitutional use of the
collected DNA Record Fee revenue goes into the state                      DNA Record Fee under Carson. The trial court ordered
highway fund. “[M]oney deposited to the state highway                     Appellant to surrender a DNA sample as part of the
fund under ... 102.020(h), Code of Criminal Procedure,                    investigation of this case. The fee is therefore “necessary
may be used only to defray the cost of administering                      or incidental” to the trial of Appellant’s case. See
[subchapter G of chapter 411] and Section 411.0205” of                    generally TEX. GOV’T CODE ANN. § 411.143(a) (West
the Texas Government Code. TEX. GOV’T CODE ANN.                           2012) (“The principal purpose of the DNA database is to
§ 411.145 (West 2012). Subchapter G governs the                           assist a federal, state, or local criminal justice agency in
collection and management of DNA samples, including                       the investigation or prosecution of sex-related offenses or
Appellant’s, by DPS. See TEX. GOV’T CODE ANN. §                           other offenses in which biological evidence is
411.1471. Section 411.0205 regulates the accreditation of                 recovered.”).
forensic crime laboratories by DPS. TEX. GOV’T CODE
ANN. § 411.0205 (West 2012). Thus, under the Texas                        *16 The Court concludes that the fee is an
Government Code, the portion of the DNA Record Fee                        unconstitutional tax because the revenue could possibly
credited to the state highway fund is used to defray the                  benefit other activities unrelated to the statewide DNA
costs associated with collecting, storing, and testing DNA                database. In doing so, the Court again relies on web sites
samples.                                                                  outside the record because Appellant has provided no
                                                                          record evidence of how the funds are expended and
The Court relies on section 222.002 of the Texas                          relieves Appellant of his burden when bringing a facial
Transportation Code, which states that money in the state                 constitutional challenge.
highway fund not earmarked for public roadways “may be
used for any function performed by” the Texas                             Because Appellant has not demonstrated that every
Department of Transportation (“TxDOT”). TEX.                              application of the statutes assigning DNA Record Fee
TRANSP. CODE ANN. § 222.002 (West 2011)                                   revenue to the state highway fund would be
(emphasis added). TxDOT does not manage DNA-sample                        unconstitutional, I would conclude that Appellant did not
collection, management, or testing. But TxDOT does not                    demonstrate that the portion of the DNA Record Fee that
have exclusive access to the state highway fund. Rather,                  benefits the state highway fund is facially
the Transportation Code simply states a general rule that                 unconstitutional.
TxDOT “may” access the fund. In contrast, the
Government Code provides a specific rule that money
from the DNA Record Fee in the state highway fund
“may be used only” by DPS to defray the cost of
administering the DNA database. TEX. GOV’T CODE                                                  Conclusion
ANN. § 411.145 (emphasis added).                                          Having determined that both portions of the DNA Record
                                                                          Fee—the 65% that benefits the criminal-justice planning
When two statutes concern the same issue, the two should                  account and the 35% that benefits the state highway
be read together as one law, and an appellate court should                fund—are sufficiently related to the prosecution of a
attempt to harmonize any conflicting provisions. Garrett                  criminal case, I would conclude that Appellant failed to
v. State, 424 S.W.3d 624, 629 (Tex.App.–Houston [1st                      satisfy his burden of demonstrating that the DNA Record
Dist.] 2013, pet. ref d). If this is not possible, specific               Fee is facially unconstitutional. Accordingly, I
rules prevail over general provisions, absent contrary                    respectfully dissent.
legislative intent. Id.; Azeez v. State, 248 S.W.3d 182, 192
(Tex.Crim.App.2008). In light of these principles, I would
hold that the statute specifically assigning DNA Record

Footnotes
1      See TEX. PENAL CODE ANN. § 22.021 (Vernon Supp.2014).

2      See TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(2) (Vernon Supp.2014) (imposing $50 charge “for executing or processing
       an issued arrest warrant, capias, or capias pro fine”).
3      See id. art. 102.011(a)(1) (imposing $5 charge for arrest without warrant).


                                                                   21
4   See TEX. CODE CRIM. PROC. ANN. art. 102.020(a)(1) (Vernon Supp.2014) (authorizing collection of $250 fee from persons
    convicted of offenses listed in Texas Government Code section 411.1471(a)(1)). We refer to the fee assessed pursuant to article
    102.020(a)(1) as a “DNA Record Fee” because it is so labeled in the trial court clerk’s bill of costs in each case.
5   Although our dissenting colleague calls into question the reliance on information available through the Texas Department of
    Transportation’s website, we note that this Court and others have repeatedly taken judicial notice of information available on
    various websites, including governmental websites. See TEX. R. EVID. 201; see, e.g., Payan v. State, 199 S.W.3d 380, 383 & n. 4
    (Tex.App.–Houston [1st Dist.] 2006, pet. ref’d) (taking judicial notice of information available on “[t]he State Library and
    Archives Commission website”); see also Chen v. Hernandez, No. 03–11–00222–CV, 2012 WL 3793294, at *14 (Tex. App.–
    Austin Aug. 28, 2012, pet. denied) (mem. op.) (noting trial court took judicial notice of “government websites,” including “website
    for the U.S. Department of State”); Hayden v. State, 155 S.W.3d 640, 647 (Tex.App.–Eastland 2005, pet. ref’d) (taking judicial
    notice of information available on “website of the United States Naval Observatory”).
6   See Reed v. Buck, 370 S.W.2d 867, 870–71 (Tex.1963) (explaining simply because certain cases had “not been cited in recent
    years,” such “ancient cases” do not “just fade[ ] away”; instead, “unless there is some good reason for overruling them, they should
    not be disregarded”); Purchase v. State, 84 S.W.3d 696, 701 (Tex.App.–Houston [1st Dist.] 2002, pet. ref’d) (“[W]e are bound by
    the decisions of our state’s highest criminal court.”).
7   We also note that under chapter 411, subchapter G, the DPS director is assigned numerous responsibilities, including “develop[ing]
    biennial plans” to “improve the reporting and accuracy of the DNA [D]atabase,” “audit[ing] the records, reports, procedures, or
    other quality assurance matters of any DNA laboratory,” and providing “training for collection of DNA samples,” none of which
    are responsibilities that are “necessary [or] incidental to the trial of a criminal case.” See TEX. GOV’T CODE ANN. §§
    411.142(e), 411.144(c), 411.146(b) (Vernon 2012); Ex Parte Carson, 143 Tex.Crim. 498, 159 S.W.2d 126, 127, 130 (1942)
    (discounting notion funds for training constitute legitimate court costs).
8   We again note that our dissenting colleague calls into question the reliance on information available through the website of the
    Office of the Governor. However, as stated previously, this Court and others have repeatedly taken judicial notice of information
    available on various websites, including governmental websites. See TEX. R. EVID. 201; see, e.g., Payan, 199 S.W.3d at 383 & n.
    4; see also Chen, 2012 WL 3793294, at *14; Hayden, 155 S.W.3d at 647.
9   In his fourth issue, appellant argues that the trial court erred in not granting him a hearing on his motions for new trial and in arrest
    of judgment because “[t]o properly challenge the constitutionality of the DNA fees and the faulty Sheriff’s fee, a hearing was
    necessary.” Appellant filed his motions in the trial court asserting that “[t]he fees from the Sheriff reflected on the bill[s] of costs
    are wholly unsupported and erroneous” and “[t]he DNA court costs are unconstitutional.” Given our disposition of appellant’s
    second and third issues, we do not reach the issue of whether the trial court erred in not granting appellant a hearing on his motions
    for new trial and in arrest of judgment. See TEX. R. APP. P. 47.1.
1   See TEX. CODE CRIM. PROC. ANN. art. 102.020(a)(1) (West Supp.2014) (“A person shall pay as a cost of court: (1) $250 on
    conviction of an offense listed in Section 411.1471(a)(1), Government Code”).




                                                                  22
