               PD-0100&0101-15
                                                                January 29, 2015

                            PD ________

               IN THE COURT OF CRIMINAL APPEALS

                              OF TEXAS
     _______________________________________________

                           OSMIN PERAZA,
                             Appellant,

                                  v.

                   THE STATE OF TEXAS,
                         Appellee.
     _______________________________________________

On Petition for Discretionary Review from the First Court of Appeals in
              Nos. 01-12-00690-CR and 01-12-00691-CR
   affirming the conviction in cause numbers 1305483 and 1305439,
        From the 184th District Court of Harris County, Texas
     _______________________________________________

       APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
     _______________________________________________

 ORAL ARGUMENT NOT REQUESTED                  ALEXANDER BUNIN
                                              Chief Public Defender
                                              Harris County, Texas

                                              JANI MASELLI WOOD
                                              Assistant Public Defender
                                              Harris County, Texas
                                              TBN. 00791195
                                              1201 Franklin Street, 13th Floor
                                              Houston, Texas 77002
                                              Phone: (713) 368-0016
                                              Fax: (713) 368-9278

                                              Counsel for Appellant
                                              January 25, 2015
                                        TABLE OF CONTENTS
                                                                                                                 PAGE

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                  1

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Ground for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Reason for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Argument

         The Court of Appeals erred in determining there was no evidence Mr.
         Peraza’s guilty pleas were coerced. The trial attorney stated on the
         record that Mr. Peraza was pressured into making his plea. Did the
         Court of Appeals err in holding that the trial court did not abuse its
         discretion in refusing to allow Mr. Peraza to withdraw his guilty plea?.. . . . 6
                Court of Appeals’ Opinion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
                Involuntary plea.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
                Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
                The record is silent as to the plea colloquy. . . . . . . . . . . . . . . . . . . . . . . . . . 10

Prayer for Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Attached

                                                             i
                                         INDEX OF AUTHORITIES
                                                                                                           PAGE
Cases:

Boykin v. Alabama,
       395 U.S. 238 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Brady v. United States,
       397 U.S. 742 (1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

Carranza v. State,
      980 S.W.2d 653 (Tex. Crim. App. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Ex Parte Lewis,
      587 S.W.2d 697 (Tex. Crim. App. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Fisher v. State,
        104 S.W.3d 923 (Tex. App.-Houston [14th Dist.] 2003, no pet.). . . . . . . . 10

Houston v. State,
      201 S.W.3d 212 (Tex. App.-Houston [14th Dist.] 2006, no pet.) . . . . . . . . 11

Jackson v. State,
       590 S.W.2d 514 (Tex. Crim. App. [Panel Op.] 1979). . . . . . . . . . . . . . . . . . 10

Martinez v. State,
      981 S.W.2d 195 (Tex. Crim. App.1998) . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

McWherter v. State,
     571 S.W.2d 312 (Tex. Crim. App.1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Peraza v. State,
      No. 01-12-00690-CR, No. 01-12-00691-CR, 2014 WL 7476214
      (Tex. App. – Houston [1st Dist.] December 30, 2014, no pet. history).p.assim

North Carolina v. Alford,
      400 U.S. 25 (1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8




                                                         ii
Statutes and Rules

TEX. PENAL CODE § 22.021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

TEX. R. APP. P. 66.3(C).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Other References

Bryan A. Garner, Garner’s Dictionary of Legal Usage 10 (Oxford Univ. Press, 3d Ed.
2011)(1987)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

W. Wendell Hall, Hall’s Standard of Review in Texas, 42 St. Mary’s L.J. 3, 16 (2010). 9




                                                            iii
                     STATEMENT REGARDING ORAL ARGUMENT

        Oral argument is not requested.

                               STATEMENT OF THE CASE

        This is an appeal from two separate cause numbers: 1305438 and 1305439.1

 Mr. Peraza pled guilty to two different felony offenses of aggravated sexual assault of

 a child. (C.R.1 at 59; C.R.2 at 61). See TEX. PENAL CODE § 22.021. The Court took

 the plea under advisement and a PSI hearing was held. (C.R.1 at 144; C.R.2 at 146).

 At the PSI hearing, Mr. Peraza sought to withdraw his guilty plea, but the court denied

 the request. (2 R.R. at 6-9). After the presentation of witnesses, the court sentenced

 Mr. Peraza to 25 years imprisonment on each case to run concurrently. (C.R.1 at 73;

 C.R.2 at 75; 2 R.R. at 39).

        Motions for new trial and motions in arrest of judgment were filed in both

 cases on August 13, 2012. (C.R.1 at 91, 116; C.R.2 at 94, 120). On August 16, 2012,

 the motions were presented and the court denied a hearing and denied the motions

 that same day. (C.R.1 at 113-15, 139-41; C.R.2 at 117-19, 143-45). Notice of appeal

 was timely filed. (C.R.1 at 78; C.R.2 at 80).




  1
      Cause Number 1305438 [01-12-00690-CR] will be designated as C.R.1 and Cause
Number 1305439 [01-12-00691-CR] will be designated as C.R.2. There is only one
reporter’s record for both cause numbers.
                                           -1-
                    STATEMENT OF THE PROCEDURAL HISTORY

      In a published opinion, the First Court of Appeals affirmed Mr. Peraza’s

conviction, but modified the judgment as to certain court costs. Peraza v. State, No.

01-12-00690-CR, No. 01-12-00691-CR, 2014 WL 7476214 (Tex. App. – Houston [1st

Dist.] December 30, 2014, no pet. history). There was a concurring and dissenting

opinion by Justice Brown concurring to the affirming of the conviction and dissenting

to the modification of the judgment. Id. No motion for rehearing was filed. This

petition is timely if filed on or before January 30, 2015.




                                          -2-
                               GROUND FOR REVIEW

      The Court of Appeals erred in determining there was no evidence Mr.
      Peraza’s guilty pleas were coerced. The trial attorney stated on the
      record that Mr. Peraza was pressured into making his plea. Did the
      Court of Appeals err in holding that the trial court did not abuse its
      discretion in refusing to allow Mr. Peraza to withdraw his guilty plea?

                               REASON FOR REVIEW

      The First Court of Appeals has decided an important question of state
      or federal law in a way that conflicts with the applicable decisions of the
      Court of Criminal Appeals or the Supreme Court of the United States.
      TEX. R. APP. P. 66.3(C).

              STATEMENT OF FACTS RELATIVE TO GROUND RAISED

      Mr. Peraza pled guilty to two different indictments - both alleging aggravated

sexual assault of a child under 14. (C.R.1 2, 59; C.R.2 at 2, 75). The docket sheets

reflect that on May 3, 2012:

      Defendant waived arraignment and entered a plea of GUILTY.
      Defendant, appearing to be sane, is admonished by the Court of the
      consequences of said plea. Penalty recommendation of the State is:
      WITHOUT AN AGREED RECOMMENDATION/PSI HEARING.
       The Court found sufficient evidence of guilt but made no finding of
      guilt. RESET FOR SENTENCING.

(C.R.1 at 144; C.R.2 at 146). At the start of the PSI hearing, the following colloquy

occurred:

      MS. DETOTO: On behalf of the defendant, Mr. Osmin Peraza, I am
      requesting that his guilty plea to the offenses be withdrawn. According
      to the Presentence report and my conversations with Mr. Peraza, Mr.
      Peraza was coerced into confessing to this offense. He, according to the


                                          -3-
offense report, did a polygraph; and they informed him that he failed.
Immediately thereafter, coincidentally, he confesses to the offenses.
  It's my opinion that that -- the initial confession was coerced; and but
for that act of coercion on the part of law enforcement, Mr. Peraza
never would have pled guilty to the offense on the trial date. If you
looked at the date that his guilty pleas took place, it happened to be
while the jury was on the way on the trial date, which leads further --
which is further evidence that his guilty pleas were coerced. And as
further evidence that –

THE COURT: I'm sorry. You're saying that having the jury on the way
is a form of coercion?

MS. DETOTO: I am, Your Honor. And that's why Mr. Peraza felt
pressured to make that decision.
   Thirdly, Your Honor, the PSI, in his version of the offense, he denies
the offense; and so, that would be evidence that his guilty pleas were not
freely and voluntarily made. So, I'm asking you for permission to
withdraw his guilty pleas in both offenses.
   I note -- I have a feeling that somewhere down the road, if we do not
do that today, a Motion for New Trial would be filed, alleging the very
same things that I'm alleging. We might have to have a hearing on that
Motion for New Trial, and I would just hate for us to have to do this all
over again, for the victim's sake.
    So, I'm respectfully asking that the guilty pleas be withdrawn. I have
had cases that have lasted a lot longer than Mr. Peraza's case. We just
tried one in here, and I don't think that -- my request to withdraw the
guilty pleas are not made for the purposes of delay, but so justice can be
actually served in this case.
    He didn't get his day in court. I know hindsight is 20/20, but he has
asked me to ask you to give him permission to withdraw the guilty pleas.

THE COURT: Thank you very much. Does the State wish to be heard
on this?

MS. BRUCHMILLER: Your Honor, he did get his day in court. The
case was originally filed on May 7, 2011; and Mr. Peraza pled guilty to
both cases on May 3, 2012. There was ample opportunity. If he wanted


                                   -4-
       to go to trial, he could have pled not guilty; and we could have had a
       trial. Both sides were ready on the day of trial. He did meet with an
       officer when this case was being investigated back in May of 2012; and
       during the time with that officer, he confessed to committing this
       offense on two different occasions. I think he had counsel who had
       been with the case, I believe, from the beginning, for several months at
       least, who was working with us regarding our plans as far as whether or
       not we were going to go to trial. There were several cases set that day;
       other defendants, as well. So, I don't believe there was any coercion on
       the part of the Court; and certainly I never talked to the defendant. But
       I feel like his plea was voluntarily made, and you asked him that during
       the -- sorry, sorry -- during the time of his plea.

       THE COURT: Thank you. I will note that I would not have taken his
       plea, Mr. Peraza's plea, if I had not believed at the time he was entering
       it freely and voluntarily. Your motion is denied.

(2 R.R. at 6-9).

       During this exchange, the prosecutor averred that Mr. Peraza had confessed

to Officer Montoya. (2 R.R. at 10). The PSI report, which the court had a copy of,

unequivocally stated Mr. Peraza denied the offense and stated the complainant was

lying. (3 R.R. SX-1 PSI page 2, 5).

       During the PSI hearing, the father of the complainant testified he was very

upset that Mr. Peraza had sexually assaulted his daughter. (2 R.R. at 12-20). Mr.

Peraza’s wife testified she did not believer her husband committed the assaults and

was a good man and good father. (2 R.R. at 26-29).

       The trial court sentenced Mr. Peraza to 25 years imprisonment on each case,

to run concurrently. (2 R.R. at 39).


                                          -5-
                                      ARGUMENT

        The Court of Appeals erred in determining there was no evidence Mr.
        Peraza’s guilty pleas were coerced. The trial attorney stated on the
        record that Mr. Peraza was pressured into making his plea. Did the
        Court of Appeals err in holding that the trial court did not abuse its
        discretion in refusing to allow Mr. Peraza to withdraw his guilty plea?

                                Court of Appeals’ Opinion

        The Court of Appeals held that despite there being no record of the guilty plea

to support Mr. Peraza’s case, there was sufficient evidence the plea was voluntarily

made:

        The record, however, contains no evidence that anyone coerced
        appellant into pleading guilty. Appellant voluntarily submitted to a
        polygraph test, and neither his failure of the polygraph test, nor the
        immediacy of a jury trial, constituted a threat, misrepresentation, or
        improper promise. Thus, appellant has not overcome the presumption
        that he knowingly and voluntarily entered his pleas.

Peraza, 2014 WL 7476214, at *3. The Court of Appeals determined the statements on

the record by Mr. Peraza’s trial attorney insufficient to support the contention that the

pleas were involuntary. This is classically unfair when the absence of evidence to

support the plea is disregarded. See Peraza, 2014 WL 7476214, at *2 (explaining

“[h]ere, the absence of a recorded plea colloquy, alone, does not overcome the

presumption that appellant was properly admonished and understood the

consequences and nature of his pleas.).




                                           -6-
                                    Involuntary plea

      In Brady v. United States, 397 U.S. 742 (1970), "[t]he standard as to the

voluntariness of guilty pleas" was set forth as follows:

      [A] plea of guilty entered by one fully aware of the direct consequences,
      including the actual value of any commitments made to him by the
      court, prosecutor, or his own counsel, must stand unless induced by
      threats, ... misrepresentations (including unfulfilled or unfulfillable
      promises), or perhaps by promises that are by their nature improper as
      having no proper relationship to the prosecution's business (e.g.,
      bribery).

See also, Ex Parte Lewis, 587 S.W.2d 697, 700 (Tex. Crim. App. 1979) (requirement of

due course of law extends to guilty pleas).

      The likelihood of loss of liberty based on a plea of guilty “demands the utmost

solicitude of which courts are capable in canvassing the matter with the accused to

make sure he has a full understanding of what the plea connotes and of its

consequence.” Boykin v. Alabama, 395 U.S. 238, 243-44 (1969). It is axiomatic that

a guilty plea must be voluntary and intelligent to satisfy due process requirements.

Boykin, 395 U.S. at 242-43. As the Court opined:

      a plea of guilty is more than an admission of conduct; it is a conviction.
      Ignorance, incomprehension, ... might be a perfect cover-up of
      unconstitutionality.

Boykin, 395 U.S. at 242-43, 89 S.Ct. at 1712. The test to determine the validity of a

guilty or no contest plea is “whether the plea represents a voluntary and intelligent



                                          -7-
choice among the alternative courses of action open to the defendant.” North Carolina

v. Alford, 400 U.S. 25, 31 (1970). Due process requires that a defendant be both

advised of and understand the direct consequences of a plea. Brady, 397 U.S. at 755.

The Supreme Court, citing Judge Tuttle of the Fifth Circuit, stated the standard as to

the voluntariness of guilty pleas:

      [A] plea of guilty entered by one fully aware of the direct consequences,
      including the actual value of any commitments made to him by the
      court, prosecutor, or his own counsel, must stand unless induced by ...
      misrepresentation ... 242 F.2d at page 115. (emphasis supplied).

Brady, 397 U.S. at 755. (footnotes omitted). In Carranza v. State, 980 S.W.2d 653, 656

(Tex. Crim. App. 1998), this Court reasoned:

      ... if a defendant’s guilty plea is not equally knowing and voluntary, it has
      been obtained in violation of due process and is therefore void.
      Moreover, because a guilty plea is an admission of all the elements of a
      formal criminal charge, it cannot be truly voluntary unless the defendant
      possesses an understanding of the law in relation to the facts. (emphasis
      supplied).

Carranza, 980 S.W.2d at 656.

      The record is silent as to what Mr. Peraza was told or explain on the day of his

plea. The record is not silent regarding his desire to withdraw his guilty plea before

he was found guilty and sentenced. Constitutional protections such as this, while

reviewed under an abuse of discretion, are far too valuable to disregard.




                                           -8-
       Mr. Peraza wanted to withdraw his guilty plea. (2 R.R. at 6-9). The trial court’s

summary dismissal of the request was an abuse of discretion.

                                     Standard of Review

       Where a defendant decides to withdraw his guilty plea after the trial judge takes

the case under advisement or pronounces judgment, the withdrawal of such plea is

within the sound discretion of the trial court. McWherter v. State, 571 S.W.2d 312 (Tex.

Crim. App.1978).

       The definition of an abuse of discretion encompasses myriads of cases and law

reviews, but has been explained as:

       “The test for abuse of discretion is not whether, in the opinion of the
       reviewing court, the facts present an appropriate case for the trial court's
       action.” Rather, a trial court abuses its discretion if its decision is
       “arbitrary, unreasonable, and without reference to [any] guiding [rules
       and] principles” or is “‘so arbitrary and unreasonable as to amount to a
       clear and prejudicial error of law.”’ (footnotes omitted).

W. Wendell Hall, Hall’s Standard of Review in Texas, 42 St. Mary’s L.J. 3, 16 (2010). In

Garner’s Dictionary of Legal Usage, it is defined as:

       the phrase denoting a lenient standard of reviewing a lower court’s
       judgment, signifies “no single level of deference or scrutiny.” The
       “variability of the phrase is not hopeless. It just means that
       generalizations about the standard may not be helpful. Abuse in this
       context is not pejorative; the word here is wholly unrelated to the
       meaning of the term when used in common parlance.”




                                             -9-
Bryan A. Garner, Garner’s Dictionary of Legal Usage 10 (Oxford Univ. Press, 3d Ed.

2011)(1987). The trial court’s refusal to even consider the withdrawal based upon an

unrecorded plea colloquy that occurred months earlier was unreasonable. The court’s

explanation that “I will note that I would not have taken his plea, Mr. Peraza's plea,

if I had not believed at the time he was entering it freely and voluntarily” is stout, but

unreasonable. (2 R.R. at 9).

       The court failed to consider Mr. Peraza’s assertion of innocence. The court

failed to consider any reason for the withdrawal, merely relying upon a belief that the

court never takes an involuntary plea. That reasoning is “without reference to [any]

guiding [rules and] principles.”

                         The record is silent as to the plea colloquy.

       The passing of a case for a PSI report is considered “[taking] the case under

advisement.” Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. [Panel Op.] 1979).

       A judge is free to make any finding based on the evidence regardless of the

plea; withdrawal of a guilty plea is not required even when evidence in a PSI raises an

issue of a defendant's innocence. Fisher v. State, 104 S.W.3d 923, 924 (Tex.

App.-Houston [14th Dist.] 2003, no pet.). Typically, proper admonishments by a trial

court establish prima facie proof that a guilty plea was entered knowingly and




                                             -10-
voluntarily. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App.1998); Houston v.

State, 201 S.W.3d 212, 217 (Tex. App.-Houston [14th Dist.] 2006, no pet.).

      In the case sub judice, the plea was not taken by a court reporter. There is no

evidence to support the plea colloquy was correct. What is present in the record is an

attorney requesting that her client be able to withdraw his plea. The attorney made

an appropriate argument that Mr. Peraza felt coerced into pleading guilty. The PSI

(despite the State’s assertions of a confession) establish that Mr. Peraza repeatedly

denied the offense.

      In this case, the burden has shifted to Mr. Peraza to show he pleaded guilty

without understanding the consequences of his plea and, consequently, suffered harm.

Houston, 201 S.W.3d at 217. The PSI hearing supports the proposition that Mr. Peraza

wished to withdraw his plea. And the voluntariness of a defendant’s plea should

never be so summarily dismissed with the statement by the court that the plea would

not have been taken had it not been “freely and voluntarily” entered. (2 R.R. at 9).




                                         -11-
                          PRAYER FOR RELIEF

For the reasons states above, Mr. Peraza prays that this Court grant his petition.

                                   Respectfully submitted,

                                   Jani Maselli Wood
                                   _______________________________
                                   JANI J. MASELLI WOOD
                                   Assistant Public Defender
                                   Harris County, Texas
                                   Jani.Maselli@pdo.hctx.net
                                   TBN. 00791195
                                   1201 Franklin Street, 13th Floor
                                   Houston, Texas 77002
                                   Phone: (713) 368-0016
                                   Fax: (713) 368-9278

                                   Attorney for Appellant
                                   Osmin Peraza




                                   -12-
                        CERTIFICATE OF SERVICE

      Pursuant to Tex. R. App. Proc. 9.5, this certifies that on January 26, 2015, a

copy of the foregoing was emailed to Lisa McMinn, State Prosecuting Attorney, and

the Harris County District Attorney’s Office through texfile.com at the following

address:


Jessica Akins
Assistant District Attorney
1201 Franklin Street, 6th Floor
Houston, TX 77002
akins_jessica@dao.hctx.net

Lisa McMinn
Lisa.McMinn@SPA.texas.gov

                                             Jani Maselli Wood
                                       _________________________________
                                       JANI J. MASELLI WOOD




                                       -13-
                        CERTIFICATE OF COMPLIANCE

       Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this

petition complies with the type-volume limitations of TEX. R. APP. PROC. 9.4(I)(2)(D).

1.     Exclusive of the portions exempted by TEX. R. APP. PROC. 9.4 (I)(1), this

petition contains 3393 words printed in a proportionally spaced typeface.

2.     This petition is printed in a proportionally spaced, serif typeface using

Garamond 14 point font in text and Garamond 14 point font in footnotes produced

by Corel WordPerfect software.

3.     Undersigned counsel understands that a material misrepresentation in

completing this certificate, or circumvention of the type-volume limits in Tex. R. App.

Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against

the person who signed it.


                                                Jani Maselli Wood
                                          ____________________________
                                          JANI J. MASELLI WOOD




                                           -14-
    Appendix A

Opinion Peraza v. State
Peraza v. State, --- S.W.3d ---- (2014)




                                                                      We modify the trial court's judgments and affirm as modified.
                  2014 WL 7476214
    Only the Westlaw citation is currently available.

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

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Peraza v. State, --- S.W.3d ---- (2014)




(Tex.App.–Houston [1st Dist.] 1998, no pet.). Once a plea has         of his legal rights, affirmed that he was mentally competent
been taken under advisement or guilt has been adjudicated,            and understood the nature of the charges against him and the
however, a request to withdraw the plea is untimely, and the          consequences of his pleas, and agreed that he freely and
withdrawal of the plea is within the sound discretion of the          voluntarily pleaded guilty in each case. Further, the plea
trial court. Jackson, 590 S.W.2d at 515; Ellis, 976 S.W.2d at         papers show that appellant's trial counsel and the trial court
792. After the trial court has admonished the defendant and           both verified that appellant entered his guilty pleas freely,
received the plea and evidence, the passage of the case for a         knowingly, and voluntarily, after having fully discussed his
presentence investigation constitutes taking the case under           pleas and their consequences with counsel. On this record,
advisement. See Jackson, 590 S.W.2d at 514–15; Wissinger              there is no evidence that appellant was not properly
v. State, 702 S.W.2d 261, 262–63 (Tex.App.–Houston [1st               admonished or failed to understand the consequence or nature
Dist.] 1985, pet. ref d). Because appellant did not request that      of his pleas.
his guilty pleas be withdrawn until after the trial court had
taken his cases under advisement, we review the trial court's         *3 In regard to appellant's assertion that his guilty pleas were
denial of his motion to withdraw his pleas for an abuse of            coerced, we note that “a plea is involuntary when it is
discretion.                                                           ‘induced by threats, misrepresentations, or improper promises'
                                                                      ” by the prosecutor, judge, or law enforcement officials. Rios
A trial court abuses its discretion when it acts arbitrarily,         v. State, 377 S.W.3d 131, 136 (Tex.App.–Houston [1st Dist.]
unreasonably, or without reference to any guiding rules or            2012, pet. ref'd) (quoting Kniatt v. State, 206 S.W.3d 657,
principles. Lyles v. State, 850 S.W.2d 497, 502                       664 (Tex.Crim.App.2006)). Moreover, we presume the
(Tex.Crim.App.1993); Montgomery v. State, 810 S.W.2d                  regularity of the judgments and proceedings, and appellant
372, 380 (Tex.Crim.App.1990). To show that the trial court            has the burden of overcoming this presumption. Dusenberry,
abused its discretion when it refused to allow appellant to           915 S.W.2d at 949.
withdraw his guilty pleas, he must show that “the trial court's
rulings lie outside the zone of reasonable disagreement.”             Appellant presented no evidence that his guilty pleas were
Jagaroo v. State, 180 S.W.3d 793, 802 (Tex.App.–Houston               actually coerced. At his sentencing hearing, appellant's trial
[14th Dist.] 2005, pet. ref'd).                                       counsel suggested that appellant was coerced into pleading
                                                                      guilty because the jury was “on the way” and appellant had
Appellant first argues that there is no evidence that he              failed a polygraph test immediately before admitting to a
voluntarily entered his pleas because there is no record of the       police officer that he had committed the sexual-assault
trial court's oral discussion with him of his legal rights. We        offenses. The record, however, contains no evidence that
consider the entire record in determining whether a plea was          anyone coerced appellant into pleading guilty. Appellant
entered voluntarily. Fimberg v. State, 922 S.W.2d 205, 207            voluntarily submitted to a polygraph test, and neither his
(Tex.App.–Houston [1st Dist.] 1996, pet. ref'd). A prima facie        failure of the polygraph test, nor the immediacy of a jury trial,
presumption that a defendant voluntarily and knowingly                constituted a threat, misrepresentation, or improper promise.
pleaded guilty arises when the trial court finds that the             Thus, appellant has not overcome the presumption that he
defendant was properly admonished. See Martinez v. State,             knowingly and voluntarily entered his pleas.
981 S.W.2d 195, 197 (Tex.Crim.App.1998); see also
Tex.Code Crim. Proc. Ann. art. 26.13(b) (Vernon Supp.2014)            When appellant requested to withdraw his guilty pleas, the
(guilty pleas may not be accepted unless mentally competent           trial court had taken his cases under advisement and reset
defendant enters plea freely and voluntarily). When the record        them for a punishment hearing. Because the trial court had
presents a prima facie showing that the plea was entered              already admonished appellant of his legal rights and he had
voluntarily and knowingly, “the burden shifts to the defendant        already voluntarily pleaded guilty, his request to withdraw his
to show that he entered the plea without understanding the            pleas was untimely, and the trial court had discretion to accept
consequences.” Arreola v. State, 207 S.W.3d 387, 391                  or deny his motion. See Jackson, 590 S.W.2d at 515.
(Tex.App.–Houston [1st Dist.] 2006, no pet.).
                                                                      Accordingly, we hold that the trial court did not err in
Here, the absence of a recorded plea colloquy, alone, does not        denying appellant's motion to withdraw his guilty pleas.
overcome the presumption that appellant was properly
admonished and understood the consequences and nature of              We overrule appellant's first issue.
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). Although the plea colloquy                               Court Costs for Arrest
was not recorded, appellant received written admonishments

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Peraza v. State, --- S.W.3d ---- (2014)




In his second issue, appellant argues that the trial court's          to correct and reform a trial court judgment ‘to make the
judgments are invalid because they each contain an erroneous          record speak the truth when it has the necessary data and
and unsupported “Sheriff's Fee.” Appellant asserts that, “[a]t        information to do so ....’ ” (quoting Asberry v. State, 813
the very least, the $50.00 Sheriff's Fee [for serving a capias]       S.W.2d 526, 529 (Tex.App.–Dallas 1991, pet. ref'd))).
should be removed” from the $634 in court costs assessed
against him in each judgment.                                         Because there is no basis in the record to support the $50
                                                                      charge for “serving capias” assessed against appellant as part
A criminal defendant must pay certain statutorily mandated            of the “Sheriff's Fee” in both of appellant's cases, we modify
costs and fees, which vary depending on the type of offense,          each judgment to delete the $50 charge from the court costs.
the underlying facts, and the procedural history of the case.
See Tex. Gov't Code Ann. § 102.021 (Vernon Supp.2014)                 We sustain appellant's second issue.
(listing court costs upon conviction); Tex. Loc. Gov't Code
Ann.. § 133.102 (Vernon Supp.2014) (same). The district                        Constitutionality of “DNA Record Fee”
court clerk must keep a record of each fee or cost charged for
a service rendered in a criminal action or proceeding. Tex.           In his third issue, appellant argues that the trial court's
Code Crim. Proc. Ann. art. 103.009(a)(1) (Vernon 2006). If            judgments are invalid because they each assess an
a criminal action is appealed, an officer of the court must           unconstitutional $250 “DNA Record Fee.” See Tex. Code
certify and sign a bill of costs and send it to the appellate         Crim. Proc. Ann. art. 102.020(a)(1) (Vernon Supp.2014)
court. Tex. Code Crim. Proc. Ann. art. 103.006 (Vernon                (authorizing collection of $250 from persons convicted of
2006).                                                                offenses listed in Texas Government Code section
                                                                      411.1471(a)(1)). Appellant asserts that the fee required by
Court costs do not constitute part of the guilt or sentence of a      article 102.020 is facially unconstitutional under the
criminal defendant—“they are ‘a nonpunitive recoupment of             separation of powers clause of the Texas Constitution. See
the costs of judicial resources expended in connection with           Tex. Const. art. II, § 1.
the trial of a case.’ ” Johnson v. State, 423 S.W.3d 385, 390
(Tex.Crim.App.2014) (quoting Armstrong v. State, 340                  Whether a statute is facially constitutional is a question of law
S.W.3d 759, 767 (Tex.Crim.App.2011)). Therefore, we                   that we review de novo. Ex Parte Lo, 424 S.W.3d 10, 14
review the assessment of court costs to determine whether             (Tex.Crim.App.2013); Ma loney v. State, 294 S.W.3d 613,
there is a basis for the cost; we do not undertake an                 626 (Tex.App.–Houston [1st Dist.] 2009, pet. ref'd). When
evidentiary-sufficiency review. Id.                                   reviewing a constitutional challenge, we “presume that the
                                                                      statute is valid and that the legislature was neither
                                                                      unreasonable nor arbitrary in enacting it.” Curry v. State, 186
*4 Here, the trial court clerk's bills of costs each include a        S.W.3d 39, 42 (Tex.App.–Houston [1st Dist.] 2005, no pet.);
$50 charge for “serving capias” as part of the “Sheriff's Fee”        see also State v. Rosseau, 396 S.W.3d 550, 557
assessed against appellant. See Tex. Code Crim. Proc. Ann.            (Tex.Crim.App.2013). If the statute can be construed in two
art. 102.011(a)(2) (Vernon Supp.2014) (“A defendant                   different ways, one of which sustains its validity, we apply the
convicted of a felony or a misdemeanor shall pay ... $50 for          interpretation that sustains its validity. Maloney, 294 S.W.3d
executing or processing an issued arrest warrant, capias, or          at 625.
capias pro fine....”). They also include a $5 charge for an
arrest without a warrant/capias. See id. art. 102.011(a)(1)           The party challenging the statute bears the burden of
(authorizing $5 charge for arrest without warrant). The State         establishing the statute's unconstitutionality. Rosseau, 396
agrees that the records do not support the $50 charge for             S.W.3d at 557; Curry, 186 S.W.3d at 42. “A facial challenge
“serving capias.” And the records contain no basis to                 to a statute is the most difficult challenge to mount
conclude that capiases were issued for appellant's arrest.            successfully because the challenger must establish that no set
                                                                      of circumstances exists under which the statute will be
The proper remedy for such an unsupported fee is for the              valid.”Santikos v. State, 836 S.W.2d 631, 633
appellate court to modify the judgment, not to grant a new            (Tex.Crim.App.1992); see also Rosseau, 396 S.W.3d at 557.
trial as appellant has requested. See Tex. R. App. P. 43.2(b);        We “must uphold the challenged statute if it can be
French v. State, 830 S.W.2d 607, 609 (Tex.Crim.App.1992)              reasonably construed in a manner consistent with the
(agreeing “appellate court has authority to reform a [trial           legislative intent and is not repugnant to the Constitution.”
court] judgment to ... make the record speak the truth when           Curry, 186 S.W.3d at 42.
the matter has been called to its attention by any source”); see
also Nolan v. State, 39 S.W.3d 697, 698 (Tex.App.–Houston
[1st Dist.] 2001, no pet.) (“An appellate court has the power

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Peraza v. State, --- S.W.3d ---- (2014)




*5 Article 102.020(a)(1), titled “Costs Related to DNA                 that are neither necessary nor incidental to the trial
Testing,” provides that a defendant convicted of certain               of a criminal case.”
offenses, including aggravated sexual assault of a child less
than fourteen years of age, “shall pay as a cost of court: $250        By law, “[m]oney that is required to be used for
[upon] conviction....” Tex. Code Crim. Proc. Ann. art.                 public roadways by the Texas Constitution or federal
102.020(a)(1). Thirty-five percent of the revenue received             law and that is deposited in the state treasury to the
from this “DNA Record Fee” is dedicated to the state                   credit of the state highway fund, ... may be used
highway fund, while sixty-five percent of the revenue is               only: (1) to improve the state highway system; (2) to
dedicated to the general revenue fund of the criminal justice          mitigate adverse environmental effects that result
planning account. Id. art. 102.020(h).                                 directly from construction or maintenance of a state
                                                                       highway by the department; or (3) by the
Appellant argues that the “DNA Record Fee” is an                       Department of Public Safety to police the state
impressible tax collected by the judiciary, rather than a              highway system and to administer state laws relating
legitimate court cost, because revenue from this fee is                to traffic and safety on public roads.” Tex. Transp.
dedicated to the state highway fund and criminal justice               Code Ann. § 222.001(a) (Vernon 2011) (emphasis
planning account and, thus, used for services that are neither         added). Section 222.002 supplements this instruction
necessary nor incidental to the trial of a criminal case. In           and provides that “[m]oney in the state highway fund
support of his argument, appellant principally relies on Ex            that is not required to be spent for public roadways
Parte Carson, 143 Tex.Crim. 498, 159 S.W.2d 126 (1942).                by the Texas Constitution or federal law may be
                                                                       used for any function performed by the department.”
In Carson, the Texas Court of Criminal Appeals considered              Id. § 222.002 (Vernon 2011) (emphasis added).
whether it was constitutionally permissible to impose a $1 fee         “[T]he department” referenced in section 222.002 is
as a court cost in all cases filed in counties with more than          the Texas Department of Transportation
eight district courts or more than three county courts at law.         (“TxDOT”). Id. § 201.001(a)(2) (Vernon
159 S.W.2d at 127. The revenue collected from the $1 fee               Supp.2014); see also State v. Montgomery Cnty.,
was directed to the “County Law Library Fund” and                      338 S.W.3d 49, 56 (Tex.App.–Beaumont 2011, pet.
“available to be used for certain costs and expenses in                denied) (noting “ ‘[d]epartment’ means the
acquiring, maintaining and operating a law library available           Department of Transportation”).
to the judges of the courts and to the attorneys of litigants.”
Id. The court held that the fee constituted an unconstitutional        *6 Here, the “DNA Record Fee” revenue dedicated
tax, not a legitimate court cost, because it was “neither              to the state highway fund does not constitute money
necessary nor incidental to the trial of a criminal case.” Id. at      that is required, by either the Texas Constitution or
127, 130. The court cautioned that to hold otherwise,                  federal law, to be used for public roadways. See Tex.
                                                                       Code Crim. Proc. Ann. art. 102.020(a)(1); Tex.
      would lead into fields of expenditures which                     Transp. Code Ann. § 222.001(a). Therefore,
      may as well include the cost of the court                        pursuant to section 222.002, such money may be
      houses, the automobiles which officers use to                    used for any function of TxDOT. See Tex. Transp.
      apprehend criminals and even the roads upon                      Code Ann. §§ 201,001, 222.002.
      which they ride. If something so remote as a
      law library may be properly charged to the                       The stated mission of TxDOT is to “[w]ork with
      litigant on the theory that it better prepares the               others to provide safe and reliable transportation
      courts and the attorneys for the performance of                  solutions for Texas.”5 Inside TxDOT: Mission, Goals
      their duties, it occurs to us that we might as                   and Values, Tex. Dep't Transp.,
      logically tax an item of cost for the education                  http://www.txdot.gov/inside-txdot/contact-us/missi
      of such attorneys and judges and even the                        on.html (last visited Dec. 16, 2014); see also Glenn
      endowments of the schools which they attend.                     T. Hasler, Dangerous Distractions: The Problematic
                                                                       Use of Wireless Communication Devices While
Id. at 127.                                                            Driving, 12 Tex. Tech. Admin. L.J. 155, 168 (2010)
                                                                       (“TxDOT's purpose is to facilitate effective
                                                                       movement throughout the state by providing safe,
Appellant, likening the “DNA Record Fee” to the                        efficient transportation systems.”); Kyle R. Baum,
law library fee in Carson, first asserts that the                      Comment, Rollin' on Down the Rail: Can Texas
portion of the “DNA Record Fee” dedicated to the                       Lead the Nation in Developing Efficient High–Speed
state highway fund “is used ... [to] provide services                  Rail this Time Around?, 45 Tex. Tech. L.Rev.

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Peraza v. State, --- S.W.3d ---- (2014)




Online 1, 2 (2013) (TxDOT's “core mission is to               may be assessed against a defendant. 159 S.W.2d at
‘provide safe and efficient movement of people and            127, 130. As discussed above, the responsibilities of
goods, enhance economic viability and improve the             TxDOT, which under the Code of Criminal
quality of life for people that travel in the state of        Procedure is entitled to use thirty-five percent of the
Texas by maintaining existing roadways and                    revenue collected by the “DNA Record Fee,” do not
collaborating with private and local entities to plan,        relate to the trial of a criminal case. Instead, the
design, build and maintain expanded transportation            responsibilities of TxDOT are far more remote from
infrastructure’ ”).                                           a criminal trial than the county law libraries which
                                                              were to be used by the judges and attorneys for trial
TxDOT is divided into twenty-two divisions, ranging           preparation in Carson. Thus, it cannot be reasonably
from aviation to maritime to public transportation            concluded that the portion of the revenue collected
and rail, which are tasked with handling the                  through the “DNA Record Fee” and dedicated to the
responsibilities of the department. See Tex. Transp.          state highway fund constitutes a proper court cost to
Code Ann. § 201.202(a) (Vernon Supp.2014) (“The               be assessed against appellant or any other criminal
commission shall organize the department into                 defendant.
divisions to accomplish the department's functions ...
including divisions for: (1) aviation; (2) highways           Accordingly, we hold that the portions of articles
and roads; and (3) public transportation.”); Inside           102.020(a)(1) and 102.020(h) requiring the
TxDOT: Divisions, Tex. Dep't Transp., http://                 collection of the “DNA Record Fee” from appellant
www.txdot.gov/inside-txdot/division.html (last                to be dedicated the state highway fund constitute an
visited Dec. 16, 2014) (“From rail crossings to right         unconstitutional tax. See Carson, 159 S.W.2d at 127,
of way, traffic cameras to travel maps, and bridge            130. But see O'Bannon v. State, 435 S.W.3d 378,
inspections to bid opportunities, TxDOT's divisions           380–82 (Tex.App.–Houston [14th Dist.] 2014, no
handle a diverse range of services for the agency.”).         pet.).

TxDOT is responsible for developing a statewide               We note that our dissenting colleague would not
transportation plan for addressing all modes of               hold that the portion of the “DNA Record Fee”
transportation, including highways and turnpikes,             revenue dedicated to the state highway fund is an
aviation, mass transportation, railroads, high-speed          unconstitutional tax. In doing so, he relies on Texas
railroads, and water traffic. See Tex. Transp. Code           Government Code section 411.145(c), which
Ann. § 201.601(a) (Vernon Supp.2014); Robbins v.              provides that “[a] fee collected under this section
Limestone Cnty., 114 Tex. 345, 268 S.W. 915, 920              shall be deposited in the state treasury to the credit
(1925) (agency created to “formulate and execute              of the state highway fund, and money deposited to
plans and policies for the location, construction and         the state highway fund under this section and under
maintenance of a comprehensive system of state                Articles 42.12 and 102.020(h), Code of Criminal
highways and public roads”); see also Tex. Transp.            Procedure, may be used only to defray the cost of
Code Ann. §§ 201.6011–622 (Vernon 2011 &                      administering [chapter 411, subchapter G] and
Supp.2014) (listing plans and projects of TxDOT);             Section 411.0205.” Tex. Gov't Code Ann. §
Brian K. Carroll, The Road Goes on Forever and the            411.145(c) (Vernon 2012); see also id. § 411.0205
Claims Process Never Ends: An Approach for                    (Vernon Supp.2014) (crime laboratory accreditation
Success in Handling Texas Department of                       process). Because “[s]ubchapter G governs the
Transportation Construction Claims, 13 Tex. Tech.             collection and management of DNA samples,
Admin. L.J. 233, 234 (2012) (“The projects range              including [a]ppellant's, by [the Texas Department of
from small landscaping and guardrail projects to              Public Safety (“DPS”) ]” and “[s]ection 411.0205
major interchanges.... TxDOT also supervises the              regulates the accreditation of forensic crime
construction of buildings for rest areas, area                laboratories by DPS,” our dissenting colleague
engineer's offices, district offices, visitor's centers,      concludes that “the portion of the DNA Record Fee
and other special purpose buildings....”).                    credited to the state highway fund is used to defray
                                                              the costs associated with collecting, storing, and
                                                              testing DNA samples” and, thus, “paying for DNA
*7 The court in Carson, which constitutes binding             sampling and crime-lab accreditation is a valid,
precedent on this Court,6 held that fees which are            constitutional use of the DNA Record Fee under
“neither necessary nor incidental to the trial of a           Carson.”
criminal case” are not legitimate courts costs that

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Peraza v. State, --- S.W.3d ---- (2014)




                                                             The criminal justice planning account is
In reaching his conclusion, however, our dissenting          administered by the Criminal Justice Division
colleague fails to consider the entire breadth of            (“CJD”) of the Governor's Office. See Tex. Gov't
subchapter G. For instance, the “DNA Database”               Code Ann. § 772.006(a)(2) (Vernon 2012).
provided for in chapter 411, subchapter G is used for        Appellant asserts that the CJD's “mission is to create
a wide variety of purposes, including “assisting in          and support programs that protect people from
the recovery or identification of human remains from         crime, reduce the number of crimes committed, and
a disaster or for humanitarian purposes,” “assisting         to promote accountability, efficiency, and
in the identification of living or deceased missing          effectiveness within the criminal justice system.” He
persons,” “establishing a population statistics              notes that it “focuses on the enhancement of
database,” “assisting in identification research,            Texas'[s] capacity to prevent crime, provide service
forensic validation studies, or forensic protocol            and treatment options, enforce laws, train staff and
development,” and “retesting to validate or update           volunteers, and the restoration of crime victims to
the original analysis or assisting in database or DNA        full physical, emotional and mental health.”
laboratory quality control.” Id. § 411.143(c) (Vernon        Appellant argues that because “the courts [are] never
2012). And the database contains DNA records from            mentioned” as part of the CJD's mission or focus, the
a whole host of individuals, such as “an unidentified        revenue collected via the “DNA Record Fee” is not
missing person or unidentified skeletal remains or           used by the CJD for services that are necessary or
body parts,” “a close biological relative of a person        incidental to the trial of a criminal case.
who has been reported missing,” and “a person at
risk of becoming lost, such as a child or a person           The Texas Government Code reveals that the CJD
declared ... mentally incapacitated.” Id. § 411.142(g)       was established to:
(Vernon 2012). Notably, none of the above statutory
purposes or the individual records in the DNA                    (1) advise and assist the governor in developing
Database relate to appellant's criminal trial, despite           policies, plans, programs, and proposed
the fact that thirty-five percent of the revenue                 legislation for improving the coordination,
collected via the “DNA Record Fee” may be utilized               administration, and effectiveness of the criminal
by DPS to “defray the cost of administering” chapter             justice system;
411, subchapter G.7 See id. § 411.145(c).
                                                                 (2) administer the criminal justice planning fund;
*8 The Texas Court of Criminal Appeals has clearly
favored a strict definition of what constitutes a                (3) prepare a state comprehensive criminal justice
legitimate court cost that may be assessed against a             plan, to update the plan annually based on an
criminal defendant. See Carson, 159 S.W.2d at 127;               analysis of the state's criminal justice problems
see also Salinas v. State, 426 S.W.3d 318, 329–30                and needs, and to encourage identical or
(Tex.App.–Houston [14th Dist.] 2014, no pet.)                    substantially similar local and regional
(Jamison, J., dissenting) (explaining Carson                     comprehensive criminal justice planning efforts;
constitutes binding precedent and “the Carson Court
clearly favored a strict definition of permissible               (4) establish goals, priorities, and standards for
‘court costs' in a criminal case”). And the revenue              programs and projects to improve the
collected via the “DNA Record Fee” to be used by                 administration of justice and the efficiency of law
DPS for anything covered by chapter 411,                         enforcement, the judicial system, prosecution,
subchapter G, or for crime laboratory accreditation              criminal defense, and adult and juvenile
under Government Code section 411.0205, is not                   corrections and rehabilitation;
closely enough related to appellant's criminal trial to
be considered constitutional.                                    (5) award grants to state agencies, units of local
                                                                 government, school districts, and private,
Appellant, again relying on Carson, next asserts that            nonprofit corporations from the criminal justice
the portion of the “DNA Record Fee” dedicated to                 planning fund for programs and projects on
the general revenue fund of the criminal justice                 consideration of the goals, priorities, and
planning account also constitutes an unconstitutional            standards recommended by the Criminal Justice
tax.                                                             Policy Council;




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Peraza v. State, --- S.W.3d ---- (2014)




  (6) apply for, obtain, and allocate for the purposes      criminal justice projects,” with not less than twenty
  of this section any federal or other funds which          percent of such money going to juvenile justice
  may be made available for programs and projects           programs); Financial Services: Grants over $25,000
  that address the goals, priorities, and standards         Administered by the Office of the Governor, Office
  established in local and regional comprehensive           o f                  G o v e r n o r ,
  criminal justice planning efforts or assist those         http://governor.state.tx.us/financial-services/grants/
  efforts;                                                  (last visited Dec. 16, 2014) (grants from criminal
                                                            justice planning fund “support a wide range of
  (7) administer the funds provided by this section         projects designed to reduce crime and improve the
  in such a manner as to ensure that grants received        criminal [and] juvenile justice systems”); Helpful
  under this section do not supplant state or local         Questions and Answers for Managing Grants,
  funds;                                                    Office of Governor, Criminal Justice Div., B–12
                                                            ( F e b . 2 0 1 4 ) , h t t p : / / g o v e r n o r . st a t e . t x . u s /
  (8) monitor and evaluate programs and projects            files/cjd/CJD_Guide_to_Grants_v7.pdf (same).
  funded under this section, cooperate with and
  render technical assistance to state agencies and
  local governments seeking to reduce crime or              Numerous entities are eligible to apply for grants
  enhance the performance and operation of the              from the criminal justice planning fund, including
  criminal justice system, and collect from any state       “[s]tate agencies, units of local government,
  or local government entity information, data,             independent school districts, nonprofit corporations,
  statistics, or other material necessary to carry out      Native American tribes, COGs, universities,
  the purposes of this section;                             colleges, hospital districts, juvenile boards, regional
                                                            education service centers, community supervision
  *9 (9) submit a biennial report to the legislature        and corrections departments, crime control and
  reporting the division's activities during the            prevention districts, and faith-based organizations.”
  preceding biennium including the comprehensive            CJD Funding Sources, supra, at 1; see also Tex.
  state criminal justice plans and other studies,           Gov't Code Ann. § 772.006(a)(5) (CJD awards
  evaluations, crime data analyses, reports, or             grants from criminal justice planning fund “to state
  proposed legislation that the governor determines         agencies, units of local government, school districts,
  appropriate or the legislature requests; and              and private, nonprofit corporations”); Press Release,
                                                            Office of Governor, Gov. Perry Awards $195,000
  (10) perform other duties as necessary to carry out       From State Criminal Justice Planning Funds (Jan.
  the duties listed in this subsection and adopt rules      2 8 ,         2 0 0 8 ) ,             h t t p : / /
  and procedures as necessary.                              governor.state.tx.us/news/press-release/5133/ (grant
                                                            recipients from criminal justice planning fund
                                                            “include local units of government, independent
Id.                                                         school districts, non-profit corporations, hospitals,
                                                            universities, colleges, community supervision and
                                                            corrections departments, law enforcement agencies
In regard to the CJD's administration of the criminal       and councils of governments”).
justice planning account, the legislature determines
and appropriates the necessary amount of money              *10 Moreover, the CJD has awarded money from the
from the criminal justice planning fund to the CJD.         fund to a variety of recipients, such as the Alamo
Tex.Code Crim. Proc. Ann. art. 102.056(a) (Vernon           Area Council of Governments for Regional Police
Supp.2014). The CJD then uses this money to                 Training Academy, the Bastrop County Women's
“[s]upport a wide range of projects designed to             Shelter for SAINT: Sexual Assault Integrated
reduce crime and improve the criminal and juvenile          Nursing Team, Fort Bend County for the “Saved by
justice systems.”8 CJD Funding Sources, Office of           the Bell” Delinquency Reduction Program, the Katy
Go ver nor , Cr iminal J u st i c e Div., 1 ,               Christian Ministries for Counseling Services for
http://governor.state.tx.us/                                Victims of Domestic Violence, and The Family
files/cjd/CJD_Funding_Sources.pdf (last visited             Place for S.T.A.R.T. (Students Tackling Abusive
Dec. 16, 2014); see also Tex. Code Crim. Proc. Ann.         Relationships Together). See, e.g., Press Release,
art. 102.056(a) (money from criminal justice                Office of Governor Tex., Gov. Perry Awards $8
planning fund used by CJD “for state and local              Million in Grants to Improve Criminal Justice

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Peraza v. State, --- S.W.3d ---- (2014)




Systems ( Se p t . 1 0 , 2 0 0 8 ) , ht t p ://             to legitimate court costs. See 159 S.W.2d at 127
governor.state.tx.us/news/press-release/11114/              (costs for training and education not legitimate court
(listing seventy-nine recipients that received more         costs that may be assessed against criminal
than $8 million in grants from criminal justice             defendants). Accordingly, we cannot conclude that
planning fund); Press Release, Office of the                the criminal justice planning account, which is
Governor of Tex., Gov. Perry Awards $195,000                funded by the “DNA Record Fee,” passes
From State Criminal Justice Planning Fund, supra            constitutional muster. See Salinas, 426 S.W.3d at
(stating more than $195,000 in grants from criminal         330–31 (Jamison, J., dissenting) (concluding court
justice planning fund awarded to Wood County for            costs assessed pursuant to Texas Local Government
Wood County Rural Prosecutor Project and                    Code section 133.102, which directs approximately
BeyondMissing Inc. for Texas Amber Alert                    thirteen percent of its revenue to the criminal justice
Network); Press Release, Office of Governor,                planning fund, unconstitutional).
Governor Rick Perry Announces Statewide Grant to
Reduce School Dropouts (Nov. 7, 2001), http://
governor.state.tx.us/ news/press-release/4229/              The State argues that appellant has not shown that
(announcing $168,146 criminal justice planning fund         the “DNA Record Fee” is unconstitutional because
grant to Behavioral Health Institute of Waco to assist      it “is a one-time fee of $250” and “is certainly
with “efforts to reduce school failure, dropout rates,      applicable to appellant, as he was court-ordered to
and juvenile crime”); see also Helpful Questions and        provide a DNA specimen in both sexual assault
Answers for Managing Grants, supra, at B–12                 cases.” The State asserts that the “DNA Record Fee”
(listing activities eligible for grants from criminal       was ordered “to reimburse the State for expenses
justice planning fund, such as job training,                incurred as a result of the felony prosecution [of
professional therapy and counseling, school based           appellant], specifically costs spent to obtain DNA
delinquency prevention, substance abuse, and peer           specimens in certain cases.” And “[s]ince this
support groups).                                            statutory assessment is reasonably related to the
                                                            costs of administering the criminal justice system,
With this background in mind, we turn to the                appellant has failed to show how the statute
propriety of the portion of the revenue collected via       authorizing this court cost is unconstitutional.”
the “DNA Record Fee” dedicated to the criminal
justice planning account and to be used by the CJD.         DPS is required to collect a DNA specimen from
As the Texas Court of Criminal Appeals explained            persons convicted of certain crimes, including
in Carson, adopting a less than strict definition of        aggravated sexual assault of a child less than
what constitutes a legitimate court cost “would lead        fourteen years of age, and maintain a database that
into fields of expenditures which may as well include       includes, among others, these DNA specimens. See
the cost of the court houses, the automobiles which         Tex. Gov't Code Ann. § 411.142 (directing DPS to
officers use to apprehend criminals and even the            maintain “computerized database that serves as the
roads upon which they ride.” 159 S.W.2d at 127.             central depository in the state for DNA records”); id.
                                                            § 411.1471 (Vernon 2012) (requiring collection of
Here, sixty-five percent of the revenue received            DNA specimen from those convicted of certain
through the “DNA Record Fee” is dedicated by law            crimes). As asserted by the State, funds from the
to the general revenue fund of the criminal justice         criminal justice planning account may be used by the
planning account in order to “[s]upport a wide range        CJD to reimburse DPS and other law enforcement
of projects designed to reduce crime and improve the        agencies for expenses incurred in performing duties
criminal and juvenile justice systems.” See CJD             required by Texas Government Code section
Funding Sources, supra, at 1. The recipients of             411.1471, namely the taking of a DNA specimen
money from the criminal justice planning fund are           from a defendant, preserving of the specimen, and
vastly diverse and range from state agencies to             maintaining a collection of the specimen. See
schools to hospitals and faith-based organizations.         Tex.Code Crim. Proc. Ann. art. 102.056(e); Tex.
Notably, the money from the criminal justice                Gov't Code Ann. § 411.1471.
planning fund is not required to be directed to the
courts or to services necessarily or incidentally           *11 Notably though, reimbursement for expenses
related to criminal trials. And often times such            related to the collection and maintenance of DNA
revenue is given to programs that, as the court in          specimens is not automatic or guaranteed under
Carson specifically noted, could not possibly relate        Texas Code of Criminal Procedure article

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Peraza v. State, --- S.W.3d ---- (2014)




102.056(e); the statute only provides that DPS will           justice planning fund grant to Behavioral Health
be reimbursed with funds from the criminal justice            Institute of Waco to assist with “efforts to reduce
planning account after it complies with certain               school failure, dropout rates, and juvenile crime”).
procedures. See Tex. Code Crim. Proc. Ann. art.               Thus, it cannot be reasonably concluded that the
102.056(e) (law enforcement agency, incurring                 revenue dedicated to the criminal justice planning
expenses in previous calendar quarter, must, on first         account provides services that are necessary or
day after end of calendar quarter, send certified             incidental to the trial of a criminal defendant's case.
statement of costs incurred to CJD). Thus, although           See Carson, 159 S.W.2d at 127, 130; see also
appellant provided a DNA specimen to DPS in                   Salinas, 426 S.W.3d at 332 (Jamison, J., dissenting)
accordance with section 411.1471 in conjunction               (“Although it appears some of the funds that go to
with his cases, it cannot be assumed that DPS was             the fair defense account may ultimately help provide
automatically reimbursed by virtue of the “DNA                counsel for indigent criminal defendants, it does not
Record Fee” for any expenses associated with the              appear that this is the sole use that can be made for
collection of his specimen.                                   these funds.... It therefore cannot be said that either
                                                              the training fund or the fair defense account are
                                                              necessary or incidental expenses in the trial of
Further, we note that even if we presume that some            appellant's criminal case.”).
of the revenue collected pursuant to the “DNA
Record Fee” is actually used to reimburse DPS or              Accordingly, we hold that the portions of article
other law enforcement agencies for collecting DNA             102.020(a)(1) and article 102.020(h) requiring the
specimens from criminal defendants, preserving such           collection of the “DNA Record Fee” from appellant
specimens, and maintaining a record of such                   to be dedicated to the general revenue fund of the
collections, it is readily apparent that this is not the      criminal justice planning account constitute an
only way in which the revenue is used. Sixty-five             unconstitutional tax. See Carson, 159 S.W.2d at 127,
percent of the revenue collected through the “DNA             130. But see O'Bannon, 435 S.W.3d at 381.
Record Fee” is dedicated to the general revenue fund
of the criminal justice planning account. As outlined         *12 We note that our sister court has recently
above, money in the criminal justice planning fund            criticized the reasoning of the Texas Court of
is given to a vast number of diverse entities, almost         Criminal Appeals opinion in Carson as “ ‘both
of none of which have any relation to the collection          abbreviated and bereft of citations to supporting
of a defendant's DNA specimen or a criminal trial.            authority.’ ” O'Bannon, 435 S.W.3d at 381 (quoting
See, e.g., Tex. Code Crim. Proc. Ann. art.                    Salinas, 426 S.W.3d at 326). In “[a]ssuming
102.056(a) (money from criminal justice planning              arguendo that Carson requires a statute imposing
fund is used for “state and local criminal justice            court costs to be ‘necessary or incidental to the trial
projects,” with not less than twenty percent of such          of a criminal case,’ ” the Fourteenth Court of
funds directed to juvenile justice programs); Tex.            Appeals held that the defendant's facial
Gov't Code Ann. § 772.006(a)(5) (CJD awards                   constitutional challenge to article 102.020 failed
grants from criminal justice planning fund “to state          because he did not “establish[ ] how the funds will
agencies, units of local government, school districts,        be used once they are distributed to the state
and private, nonprofit corporations”); Press Release,         highway fund and the criminal justice planning
Office of Governor, Gov. Perry Awards $8 Million              account.” Id. at 381–82. It asserted that the
in Grants to Improve Criminal Justice Systems,                defendant merely “infer[ed]” that revenue collected
supra (listing seventy-nine recipients that received          pursuant to article 102.020(a)(1) will “flow ‘directly
more than $8 million in grants from criminal justice          to the executive branch [to be] used for policy
planning fund); Press Release, Office of Governor,            purposes' ” or to the state highway fund, “not [to] be
Gov. Perry Awards $195,000 from State Criminal                used for purposes necessary or incidental to DNA
Justice Planning Funds, supra (stating more than              collection or testing.” Id. at 382.
$195,000 in grants from criminal justice planning
fund awarded to Wood County for Wood County                   We respectfully disagree with our sister court for the
Rural Prosecutor Project and BeyondMissing Inc.               reasons outlined above. In short, we first note that
for Texas Amber Alert Network); Press Release,                the reasoning of the Texas Court of Criminal
Office of Governor, Governor Rick Perry                       Appeals in Carson is sound and it constitutes
Announces Statewide Grant to Reduce School                    binding precedent upon it and lower courts. See
Dropouts, supra (announcing $168,146 criminal                 Reed v. Buck, 370 S.W.2d 867, 870–71 (Tex.1963)

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Peraza v. State, --- S.W.3d ---- (2014)




(explaining simply because certain cases had “not            *13 We affirm the judgment of the trial court as
been cited in recent years,” such “ancient cases” do         modified.
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           Harvey Brown, Justice, Concurring and Dissenting
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.”). Second, we note that
criminal defendants similarly situated to appellant          I join with the Court's conclusions that the trial court
are not asking appellate courts to “infer” how the           did not abuse its discretion in denying Appellant's
revenue from the “DNA Record Fee” will be                    motion to withdraw his guilty pleas and that the
directed. As discussed above, the revenue, by statute,       judgment should be modified, striking the
is dedicated by law for expenditures that are far            unsupported “Sheriff's Fee” assessed in both cases.
removed from actual “court costs.” A plain reading           However, I disagree with the Court's conclusion that
of the pertinent statutes reveals this undeniable fact.      the “DNA Record Fee”1 is unconstitutional.


We sustain appellant's third issue.9
                                                                 Facial Challenge to the DNA Record Fee
                     Conclusion
                                                             Appellant argues that the statute authorizing
Having held that the “DNA Record Fee” assessed               collection of the fee is facially unconstitutional
against appellant pursuant to article 102.020(a)(1)          under the separation-of-powers clause of the Texas
and article 102.020(h) constitutes an unconstitutional       Constitution. Tex. Const. art. II, § 1. Under that
tax, we modify each judgment to delete the $250              provision, a statute authorizing a court to collect
charge from the assessed court costs. See Cates v.           costs “neither necessary nor incidental to the trial of
State, 402 S.W.3d 250, 252 (Tex.Crim.App.2013)               a criminal case” is not valid.Ex parte Carson, 143
(holding proper remedy when trial court erroneously          Tex.Crim. 498, 159 S.W.2d 126, 127 (1942).
includes amounts as court costs is to modify                 Appellant makes only a facial challenge, which
judgment to delete erroneous amounts); Sturdivant            requires him to “establish that no set of
v. State, 445 S.W.3d 435, 443 (Tex.App.–Houston              circumstances exists under which the statute will be
[1st Dist.] 2014, pet. ref d) (holding trial court           valid.” Santikos v. State, 836 S.W.2d 631, 633
erroneously included attorney pro tern fees as court         (Tex.Crim.App.1992); see also State v. Rosseau,
costs and modifying judgment accordingly); see also          396 S.W.3d 550, 557 (Tex.Crim.App.2013). In my
Tex. R. App. P. 43.2(b).                                     view, Appellant has not shown that every application
                                                             of the statue violates the Carson standard. I would,
                                                             therefore, affirm the constitutionality of the fee.
Further, as noted above, having held that there is no
basis in the record to support the charge for “serving
capias,” we also modify each judgment to delete the          A. Reviewing a facial challenge
$50 charge from the assessed court costs. See
French, 830 S.W.2d at 609 (agreeing “appellate               When reviewing the constitutionality of a statute, “an
court has authority to reform a [trial court] judgment       appellate court must presume that the statute is valid
to ... make the record speak the truth when the matter       and that the legislature was neither unreasonable nor
has been called to its attention by any source”);            arbitrary in enacting it.” Curry v. State, 186 S.W.3d
Nolan, 39 S.W.3d at 698 (“An appellate court has             39, 42 (Tex.App.–Houston [1st Dist.] 2005, no pet.)
the power to correct and reform a trial court                (citing Ex parte Granviel, 561 S.W.2d 503, 511
judgment ‘to make the record speak the truth when            (Tex.Crim.App.1978)). A reviewing court must
it has the necessary data and information to do so           make every reasonable presumption in favor of the
....’ ” (quoting Asberry, 813 S.W.2d at 529)); see           statute's constitutionality, unless the contrary is
also Tex. R. App. P. 43.2(b).                                clearly shown. Granviel, 561 S.W.2d at 511; see
                                                             Tex. Gov't Code Ann. § 311.021 (West 2013)
                                                             (noting that courts presume “compliance” with
                                                             Texas and United States Constitutions).

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Peraza v. State, --- S.W.3d ---- (2014)




                                                            sexual assault of a child under 14 years of age—and
                                                            to create a database cataloging the DNA specimens.
To prevail, the party asserting a facial challenge          Tex. Gov't Code Ann. § 411.142 (West 2012)
“must establish that the statute always operates            (directing DPS to maintain “computerized database
unconstitutionally in all possible circumstances.”          that serves as the central depository in the state for
Rosseau, 396 S.W.3d at 557. When construing a               DNA records” that is compatible with FBI's national
statute, courts consider, among other factors, the          DNA identification index system); id. § 411.1471
object sought to be attained by the legislation, laws       (West 2012) (requiring collection of DNA
on the same or similar subjects, and the                    specimens from people charged with or convicted of
consequences of a particular construction. Tex. Gov't       certain crimes, including aggravated sexual assault
Code Ann. § 311.023 (West 2013); see State v.               of child under 14 years of age); Tex. Penal Code
Neesley, 239 S.W.3d 780, 784                                Ann. § 22.021 (West Supp.2014) (defining
(Tex.Crim.App.2007); Nguyen v. State, 1 S.W.3d              aggravated sexual assault of child under 14 years of
694, 696–97 (Tex.Crim.App.1999); see also                   age). The criminal-justice planning account allocates
Dowthitt v. State, 931 S.W.2d 244, 258                      funds toward the collection and management of this
(Tex.Crim.App.1996). If a statute can be reasonably         statewide criminal DNA database. See Tex.Code
interpreted in a manner that does not offend the            Crim. Proc. Ann. art. 102.056 (West Supp.2014).
constitution, a reviewing court must overrule a facial      Specifically, subsection (e) of article 102.056 directs
challenge to the statute's constitutionality. Curry,        the Legislature to
186 S.W.3d at 42.
                                                                  determine and appropriate the necessary
                                                                  amount from the criminal justice planning
B. Constitutionality of the DNA Record Fee                        account to the criminal justice division of the
benefiting the criminal-justice planning account                  governor's office for reimbursement in the
                                                                  form of grants to the Department of Public
*14 Appellant argues that the DNA Record Fee                      Safety of the State of Texas and other law
unconstitutionally benefits the criminal-justice                  enforcement agencies for expenses incurred in
planning account because the account is “too                      performing duties imposed on those agencies
remote” to be considered a necessary or incidental                under Section 411.1471 or Subchapter B–1,
cost of prosecuting a criminal case as required under             Chapter 420, Government Code, as applicable.
Carson, 159 S.W.2d at 127 (concluding that law
library fee is remote and unconstitutional). The            Id.
Court agrees and cites several possible uses of
money from the criminal-justice planning account
that are not related to the prosecution of a criminal       After looking outside the record to press releases and
case. This approach is contrary to the standard that        web sites, the Court insists that “it cannot be
applies to claims that a statute is facially                assumed that DPS was automatically reimbursed by
unconstitutional because (1) it diminishes the              virtue of the ‘DNA Record Fee’ for any expenses
challenger's burden to demonstrate that all—not             associated with the collection of [Appellant's]
some—applications of a statute are unconstitutional;        sample” and therefore the fee is an unconstitutional
and (2) it runs afoul of precedent by favoring an           tax. This conclusion does not account for the
unconstitutional reading over a constitutional              remainder of subsection (e), which continues:
reading when construing statutes. I would construe
the criminal-justice planning account in its statutory
                                                                  The criminal justice division through a grant
context, situated among related statutes, and
                                                                  [of money from the criminal-justice planning
conclude that Appellant has not demonstrated that all
                                                                  account] shall reimburse the law enforcement
applications of the statute are unconstitutional under
                                                                  agency for the costs not later than the 30th day
the Carson standard.
                                                                  after the date the certified statement is
                                                                  received. If the criminal justice division does
                                                                  not reimburse the law enforcement agency
The Department of Public Safety (“DPS”) is
                                                                  before the 90th day after the date the certified
required to collect a DNA specimen from every
                                                                  statement is received, the agency is not
person charged with certain categories of crimes,
                                                                  required to perform duties imposed under
including the crime involved here—aggravated

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Peraza v. State, --- S.W.3d ---- (2014)




      Section 411.1471 or Subchapter B–1, Chapter            Likewise, Appellant has not demonstrated that the
      420, Government Code, as applicable, until             portion of the DNA Record Fee that benefits the
      the agency has been compensated for all costs          state highway fund is facially invalid. Pursuant to
      for which the agency has submitted a certified         article 102.020(h) of the Texas Code of Criminal
      statement under this subsection.                       Procedure, a portion of collected DNA Record Fee
                                                             revenue goes into the state highway fund. “[M]oney
Id. Thus, the Court's skepticism is unjustified given        deposited to the state highway fund under ...
the wording of the statute regarding reimbursement           102.020(h), Code of Criminal Procedure, may be
to fund the DNA project.                                     used only to defray the cost of administering
                                                             [subchapter G of chapter 411] and Section
                                                             411.0205” of the Texas Government Code. Tex.
                                                             Gov't Code Ann. § 411.145 (West 2012).
The Court also insists that, even if DPS were                Subchapter G governs the collection and
reimbursed, the fee is nevertheless unconstitutional         management of DNA samples, including Appellant's,
because the criminal-justice planning account funds          by DPS. See Tex. Gov't Code Ann. § 411.1471.
other unrelated projects. Following this analysis, it        Section 411.0205 regulates the accreditation of
would be enough for a party bringing a facial                forensic crime laboratories by DPS. Tex. Gov't Code
constitutional challenge to show that some possible          Ann. § 411.0205 (West 2012). Thus, under the
applications of a statute are unconstitutional to            Texas Government Code, the portion of the DNA
justify invalidating every application of that statute.      Record Fee credited to the state highway fund is
That is the wrong standard. See Santikos, 836                used to defray the costs associated with collecting,
S.W.2d at 633 (“[T]he challenger must establish that         storing, and testing DNA samples.
no set of circumstances exists under which the
statute will be valid.”). While money from the
criminal-justice planning account apparently funds           The Court relies on section 222.002 of the Texas
other programs in addition to the DNA database,              Transportation Code, which states that money in the
Appellant presents no evidence that the DNA Record           state highway fund not earmarked for public
Fee revenue does anything more than reimburse the            roadways “may be used for any function performed
criminal-justice planning account for its                    by” the Texas Department of Transportation
DNA-database expenditures. Appellant appears to              (“TxDOT”). Tex. Transp. Code Ann. § 222.002
concede that reimbursement for these expenditures            (West 2011) (emphasis added). TxDOT does not
would not violate Carson. I agree.                           manage DNA-sample collection, management, or
                                                             testing. But TxDOT does not have exclusive access
                                                             to the state highway fund. Rather, the Transportation
*15 I would hold that collecting the DNA Record              Code simply states a general rule that TxDOT “may”
Fee to benefit the criminal-justice planning account         access the fund. In contrast, the Government Code
is constitutional because these funds may be                 provides a specific rule that money from the DNA
allocated to the statewide criminal DNA database.            Record Fee in the state highway fund “may be used
Because such an allocation would be constitutional,          only” by DPS to defray the cost of administering the
Appellant fails to meet his burden of showing that           DNA database. Tex. Gov't Code Ann. § 411.145
every application of the statute would result in             (emphasis added).
constitutional injury. See Rosseau, 396 S.W.3d at
557 (noting moving party has burden of
demonstrating statute's unconstitutionality in “all its      When two statutes concern the same issue, the two
possible applications.”). Accordingly, I would               should be read together as one law, and an appellate
conclude that Appellant has failed to demonstrate            court should attempt to harmonize any conflicting
that the portion of the DNA Record Fee that benefits         provisions. Garrett v. State, 424 S.W.3d 624, 629
the criminal-justice planning account is an                  (Tex.App.–Houston [1st Dist.] 2013, pet. ref d). If
unconstitutional tax.                                        this is not possible, specific rules prevail over
                                                             general provisions, absent contrary legislative intent.
                                                             Id.; Azeez v. State, 248 S.W.3d 182, 192
C. Constitutionality of the DNA Record Fee                   (Tex.Crim.App.2008). In light of these principles, I
benefiting the state highway fund                            would hold that the statute specifically assigning
                                                             DNA Record Fee revenue in the state highway fund

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Peraza v. State, --- S.W.3d ---- (2014)




to DPS for DNA sampling and crime-lab
accreditation prevails over the general statute relied
upon by the Court.


I would further hold that paying for DNA sampling
and crime-lab accreditation is a valid, constitutional
use of the DNA Record Fee under Carson. The trial
court ordered Appellant to surrender a DNA sample
as part of the investigation of this case. The fee is
therefore “necessary or incidental” to the trial of
Appellant's case. See generally Tex. Gov't Code
Ann. § 411.143(a) (West 2012) (“The principal
purpose of the DNA database is to assist a federal,
state, or local criminal justice agency in the
investigation or prosecution of sex-related offenses
or other offenses in which biological evidence is
recovered.”).


*16 The Court concludes that the fee is an
unconstitutional tax because the revenue could
possibly benefit other activities unrelated to the
statewide DNA database. In doing so, the Court
again relies on web sites outside the record because
Appellant has provided no record evidence of how
the funds are expended and relieves Appellant of his
burden when bringing a facial constitutional
challenge.


Because Appellant has not demonstrated that every
application of the statutes assigning DNA Record
Fee revenue to the state highway fund would be
unconstitutional, I would conclude that Appellant
did not demonstrate that the portion of the DNA
Record Fee that benefits the state highway fund is
facially unconstitutional.



                    Conclusion

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. Accordingly, I respectfully
dissent.




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Peraza v. State, --- S.W.3d ---- (2014)




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).


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”).

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                                                                      127 (Tex.Crim.App.1942). Appellant makes only a facial
                     2014 WL 7530437                                  challenge, which requires him to “establish that no set of
                                                                      circumstances exists under which the statute will be valid.”
NOTICE: THIS OPINION HAS NOT BEEN RELEASED                            S an tiko s v. S t a t e , 83 6 S.W .2 d 6 3 1 , 6 3 3
FOR PUBLICATION IN THE PERMANENT LAW                                  (Tex.Crim.App.1992); see also State v. Rosseau, 396 S.W.3d
REPORTS. UNTIL RELEASED, IT IS SUBJECT TO                             550, 557 (Tex.Crim.App.2013). In my view, Appellant has
REVISION OR WITHDRAWAL.                                               not shown that every application of the statue violates the
     CONCURRING & DISSENTING OPINION                                  Carson standard. I would, therefore, affirm the
                                                                      constitutionality of the fee.
                Court of Appeals of Texas,
                   Houston (1st Dist.
                                                                      A. Reviewing a facial challenge
                                                                      When reviewing the constitutionality of a statute, “an
             Osmin Peraza, Appellant                                  appellate court must presume that the statute is valid and that
                          v.                                          the legislature was neither unreasonable nor arbitrary in
            The State of Texas, Appellee                              enacting it.” Curry v. State, 186 S.W.3d 39, 42 (Tex.
   NO. 01–12–00690–CR, NO. 01–12–00691–CR |                           App.–Houston [1st Dist.] 2005, no pet.) (citing Ex parte
         Opinion issued December 30, 2014                             Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978)). A
                                                                      reviewing court must make every reasonable presumption in
                                                                      favor of the statute's constitutionality, unless the contrary is
                                                                      clearly shown. Granviel, 561 S.W.2d at 511; see Tex. Gov't
                                                                      Code Ann.. § 311.021 (West 2013) (noting that courts
On Appeal from the 184th District Court, Harris County,               presume “compliance” with Texas and United States
Texas, Trial Court Case Nos. 1305438 and 1305439.                     Constitutions).
Panel consists of Justices Jennings, Sharp, and Brown.

                                                                      To prevail, the party asserting a facial challenge “must
                                                                      establish that the statute always operates unconstitutionally in
                                                                      all possible circumstances.” Rosseau, 396 S.W.3d at 557.
      CONCURRING & DISSENTING OPINION                                 When construing a statute, courts consider, among other
                                                                      factors, the object sought to be attained by the legislation,
                                                                      laws on the same or similar subjects, and the consequences of
                                                                      a particular construction. Tex. Gov't Code Ann. § 311.023
                                                                      (West 2013); see State v. Neesley, 239 S.W.3d 780, 784
Harvey Brown, Justice                                                 (Tex.Crim.App.2007); Nguyen v. State, 1 S.W.3d 694,
                                                                      696–97 (Tex. Crim. App. 1999); see also Dowthitt v. State,
I join with the Court's conclusions that the trial court did not      931 S.W.2d 244, 258 (Tex. Crim. App. 1996). If a statute can
abuse its discretion in denying Appellant's motion to                 be reasonably interpreted in a manner that does not offend the
withdraw his guilty pleas and that the judgment should be             constitution, a reviewing court must overrule a facial
modified, striking the unsupported “Sheriff's Fee” assessed in        challenge to the statute's constitutionality. Curry, 186 S.W.3d
both cases. However, I disagree with the Court's conclusion           at 42.
that the “DNA Record Fee”1 is unconstitutional.

                                                                      B. Constitutionality of the DNA Record Fee benefiting
                                                                      the criminal-justice planning account
                                                                      Appellant argues that the DNA Record Fee unconstitutionally
        Facial Challenge to the DNA Record Fee                        benefits the criminal-justice planning account because the
                                                                      account is “too remote” to be considered a necessary or
Appellant argues that the statute authorizing collection of the       incidental cost of prosecuting a criminal case as required
fee is facially unconstitutional under the separation-of-powers       under Carson. 159 S.W.2d at 127 (concluding that law library
clause of the Texas Constitution. Tex. Const. art. II, § 1.           fee is remote and unconstitutional). The Court agrees and
Under that provision, a statute authorizing a court to collect        cites several possible uses of money from the criminal-justice
costs “neither necessary nor incidental to the trial of a             planning account that are not related to the prosecution of a
criminal case” is not valid. Ex parte Carson, 159 S.W.2d 126,         criminal case. This approach is contrary to the standard that

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Peraza v. State, --- S.W.3d ---- (2014)




applies to claims that a statute is facially unconstitutional       The criminal justice division through a grant [of money from
because (1) it diminishes the challenger's burden to                the criminal-justice planning account] shall reimburse the law
demonstrate that all—not some—applications of a statute are         enforcement agency for the costs not later than the 30th day
unconstitutional; and (2) it runs afoul of precedent by             after the date the certified statement is received. If the
favoring an unconstitutional reading over a constitutional          criminal justice division does not reimburse the law
reading when construing statutes. I would construe the              enforcement agency before the 90th day after the date the
criminal-justice planning account in its statutory context,         certified statement is received, the agency is not required to
situated among related statutes, and conclude that Appellant        perform duties imposed under Section 411.1471 or
has not demonstrated that all applications of the statute are       Subchapter B–1, Chapter 420, Government Code, as
unconstitutional under the Carson standard.                         applicable, until the agency has been compensated for all
                                                                    costs for which the agency has submitted a certified statement
                                                                    under this subsection.
The Department of Public Safety (“DPS”) is required to
collect a DNA specimen from every person charged with               Id. Thus, the Court's skepticism is unjustified given the
certain categories of crimes, including the crime involved          wording of the statute regarding reimbursement to fund the
here—aggravated sexual assault of a child under 14 years of         DNA project.
age—and to create a database cataloging the DNA specimens.
Tex. Gov't Code Ann. § 411.142 (West 2012) (directing DPS
to maintain “computerized database that serves as the central
depository in the state for DNA records” that is compatible         The Court also insists that, even if DPS were reimbursed, the
with FBI's national DNA identification index system); id. §         fee is nevertheless unconstitutional because the
411.1471 (West 2012) (requiring collection of DNA                   criminal-justice planning account funds other unrelated
specimens from people charged with or convicted of certain          projects. Following this analysis, it would be enough for a
crimes, including aggravated sexual assault of child under 14       party bringing a facial constitutional challenge to show that
years of age); Tex. Penal Code Ann. § 22.021 (West                  some possible applications of a statute are unconstitutional to
Supp.2014) (defining aggravated sexual assault of child under       justify invalidating every application of that statute. That is
14 years of age). The criminal-justice planning account             the wrong standard. See Santikos, 836 S.W.2d at 633 (“[T]he
allocates funds toward the collection and management of this        challenger must establish that no set of circumstances exists
statewide criminal DNA database. See Tex.Code Crim. Proc.           under which the statute will be valid.”). While money from
Ann.. art. 102.056 (West Supp.2014). Specifically, subsection       the criminal-justice planning account apparently funds other
(e) of article 102.056 directs the Legislature to                   programs in addition to the DNA database, Appellant presents
                                                                    no evidence that the DNA Record Fee revenue does anything
determine and appropriate the necessary amount from the             more than reimburse the criminal-justice planning account for
criminal justice planning account to the criminal justice           its DNA-database expenditures. Appellant appears to concede
division of the governor's office for reimbursement in the          that reimbursement for these expenditures would not violate
form of grants to the Department of Public Safety of the State      Carson. I agree.
of Texas and other law enforcement agencies for expenses
incurred in performing duties imposed on those agencies
under Section 411.1471 or Subchapter B–1, Chapter 420,              I would hold that collecting the DNA Record Fee to benefit
Government Code, as applicable.                                     the criminal-justice planning account is constitutional because
                                                                    these funds may be allocated to the statewide criminal DNA
Id.                                                                 database. Because such an allocation would be constitutional,
                                                                    Appellant fails to meet his burden of showing that every
                                                                    application of the statute would result in constitutional injury.
                                                                    See Rosseau, 396 S.W.3d at 557 (noting moving party has
                                                                    burden of demonstrating statute's unconstitutionality in “all its
After looking outside the record to press releases and web          possible applications.”). Accordingly, I would conclude that
sites, the Court insists that “it cannot be assumed that DPS        Appellant has failed to demonstrate that the portion of the
was automatically reimbursed by virtue of the ‘DNA Record           DNA Record Fee that benefits the criminal-justice planning
Fee’ for any expenses associated with the collection of             account is an unconstitutional tax.
[Appellant's] sample” and therefore the fee is an
unconstitutional tax. This conclusion does not account for the
remainder of subsection (e), which continues:                       C. Constitutionality of the DNA Record Fee benefiting
                                                                    the state highway fund

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Peraza v. State, --- S.W.3d ---- (2014)




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


I would further hold that paying      for DNA sampling and
crime-lab accreditation is a valid,   constitutional use of the
DNA Record Fee under Carson.          The trial court ordered
Appellant to surrender a DNA          sample as part of the

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Peraza v. State, --- S.W.3d ---- (2014)




Footnotes

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”).

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