                                                                      ACCEPTED
                                                                  02-15-00385-CR
                                                      SECOND COURT OF APPEALS
                                                            FORT WORTH, TEXAS
                                                            12/17/2015 4:08:08 PM
                                                                   DEBRA SPISAK
                                                                           CLERK

          NOS. 02-15-00385-CR
                02-15-00386-CR
    ________________________________       FILED IN
      IN THE COURT OF APPEALS        2nd COURT OF APPEALS
                                       FORT WORTH, TEXAS
  FOR THE SECOND JUDICIAL DISTRICT 12/17/2015 4:08:08 PM
       OF TEXAS AT FORT WORTH            DEBRA SPISAK
    ________________________________         Clerk


     WILLIE LEE AMIE, JR., Appellant

                    V.

     THE STATE OF TEXAS, Appellee
    ________________________________

      On Appeal from Criminal District
   Court No. Two of Tarrant County, Texas
        the Honorable Wayne Salvant
Presiding in Cause Nos. 1394034D & 1411402D
  _____________________________________



           APPELLANT’S BRIEF




                         Abe Factor
                         TBN: 06768500
                         Factor, Campbell & Collins
                         Attorneys at Law
                         5719 Airport Freeway
                         Fort Worth, Texas 76117
                         Phone: (817) 222-3333
                         Fax: (817) 222-3330
                         Attorney for Appellant
                         Willie Lee Amie, Jr.




   NO ORAL ARGUMENTS REQUESTED
               IDENTITY OF PARTIES AND COUNSEL

     The following is a complete list of parties to the trial court’s
judgment, with names and addresses of all trial and appellate counsel.

Trial Judge:                   Hon. Wayne Salvant, presiding judge,
                               Criminal District Court No. Two

Appellant:                     Willie Lee Amie, Jr.

Appellant’s Trial Counsel:     Benson Varghese
                               TBN: 24063683
                               Steven Jumes
                               TBN: 00796854
                               Varghese Summersett PLLC
                               420 Throckmorton, Suite 200
                               Fort Worth, TX 76102

Appellant’s Counsel            Abe Factor
on Appeal:                     TBN: 06768500
                               Factor, Campbell & Collins
                               5719 Airport Freeway
                               Fort Worth, Texas 76117

Appellee:                      The State of Texas

Appellee’s Trial Counsel:      Vincent Giardino
                               TBN: 24072939
                               Julie Harbin
                               TBN: 24074353
                               Assistant Criminal District Attorneys
                               401 West Belknap
                               Fort Worth, Texas 76196

Appellee's Counsel             Debra Windsor
on Appeal:                     TBN: 00788692
                               Assistant Criminal District Attorney
                               401 West Belknap
                               Fort Worth, Texas 76196
                                    TABLE OF CONTENTS

                                                                       page
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . .i

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iii

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

POINTS OF ERROR PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

          Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I.        Section 133.102(a)(1) of the Texas Local Government
          Code by which the “consolidated court cost” was
          assessed is unconstitutional . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

          A.        Preservation of Error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

          B.        Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

          C.        Article 133.102(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

          D.        Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13


                                                       ii
                         TABLE OF AUTHORITIES

cases                                                                          page

Armstrong v. State,
     340 S.W.3d 759 (Tex. Crim. App. 2011). . . . . . . . . . . . . . . . . . . . 11

Curry v. State,
      186 S.W.3d 39 (Tex. App.–Houston [1st Dist.] 2005, no pet.).6, 7

Ex Parte Carson,
      143 Tex. Crim. 498, 159 S.W.2d 126 (1942). . . . . . . . . 9, 10, 11, 12

Ex Parte Lo,
      424 S.W.3d 10 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . . . . . . . 6

Johnson v. State,
      423 S.W.3d 385 (Tex. Crim. App. 2014). . . . . . . . . . . . . . . . 4, 5, 11

Lawson v. State,
     283 S.W.3d 438 (Tex. App.–Fort Worth 2009, pet. ref’d). . . . . . .6

State v. Rosseau,
       396 S.W.3d 550 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . . . . 6, 7

Lopez v. State,
      253 S.W.3d 680 (Tex. Crim. App. 2008). . . . . . . . . . . . . . . . . . . . . 4

Maloney v. State,
     294 S.W.3d 613 (Tex. App.–
             Houston [1st Dist.] 2009, pet. ref’d). . . . . . . . . . . . . . . . . . 6

Mayer v. State,
      309, S.W.3d 552 (Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . . . 5

Peraza v. State,
      467 S.W.3d 508 (Tex. Crim. App. 2015, cert. filed). . . . . . . . . . . .4



                                          iii
Santikos v. State,
      836 S.W.2d 631 (Tex. Crim. App. 1992). . . . . . . . . . . . . . . . . . . . . 6

Constitutions

T EX. C ONST. art. II § 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

T EX. C ONST. art. V, § 5(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

Statutes

T EX. C RIM. P ROC. C ODE A NN. § 26.05(g) (West Supp. 2015). . . . . . . . . . 5

T EX. G OV’T C ODE A NN. § 501.014 (West 2012). . . . . . . . . . . . . . . . . . . . . 2

T EX. L OC. G OV’T C ODE A NN. § 133.102(a)(1) (West Supp. 2015). . . . 7, 8

T EX. L OC. G OV’T C ODE A NN. § 133.102(b) (West Supp. 2015). . . . . . . . 8

T EX. L OC. G OV’T C ODE A NN. § 133.102(e) (West Supp. 2015). . . . . . . . .8

T EX. P ENAL C ODE A NN. § 29.02(a)(1)(West 2011). . . . . . . . . . . . . . . . . . .1


Court Rules

T EX. R. A PP. P. 25.2(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Tex. R. App. P. 33.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Other Sources

Tex. Atty. Gen. Op., No.JC-0158 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . .1 1




                                                     iv
                    STATEMENT OF THE CASE

      On March 18, 2015, Appellant Willie Lee Amie, Jr. (“Mr. Amie”

or “Appellant”) was indicted for the second degree felony offense of

robbery, alleged to have occurred on November 21, 2014. [034 C.R. 5);1

see T EX. P ENAL C ODE A NN. § 29.02(a)(1)(West 2011). On June 05, 2015,

Mr. Amie was indicted for another second degree felony offense of

robbery, alleged to have occurred on April 18, 2015. [402 C.R. 4];2 Id. On

October 6, 2015, Mr. Amie entered a plea of guilty before the jury to

each case. [II R.R. 135, 137].    Punishment was to the jury, which

sentenced Mr. Amie to two, concurrent terms of fifteen (15) years

incarceration in the Texas Department of Criminal Justice–Institutional

Division. [III R.R. 28, 29]. Timely notices of appeal were filed on

October 7, 2015. [034 C.R. 45; 402 C.R. 30]. This appeal ensued.




1
 Citations to the Clerk’s Record in Cause Number 1394034D will be
designated as “034 C.R. xx.”
2
 Citations to the Clerk’s Record in Cause Number 1411402D will be
designated as “402 C.R. xx.”

                                    1
                 POINTS OF ERROR PRESENTED

                      POINT OF ERROR ONE

I.    Section 133.102(a)(1) of the Texas Local Government Code by
      which the “consolidated court cost” in the amount of $133 was
      assessed is unconstitutional.

                      STATEMENT OF FACTS

      On October 6, 2015, Mr. Amie entered a plea of guilty before the

jury to each case. [II R.R. 135, 137]. Punishment was to the jury, which

heard evidence and argument from the State and the Defense. [II R.R.

passim; III R.R. passim]. At the close of the punishment phase, the jury

sentenced Mr. Amie to two, concurrent terms of fifteen (15) years

incarceration in the Texas Department of Criminal Justice–Institutional

Division. [III R.R. 28, 29]. Assessed as a court cost against Mr. Amie in

each case was a “Consolidated Court Cost” in the amount of $133. [034

C.R. 43; 402 C.R. 28]. Incorporated into each of the Judgments was an

“Order to Withdraw Funds” relating to Mr. Armie’s inmate trust fund

directing that $309.00 be taken pursuant to the statutory scheme for the

State of Texas to withdraw funds from his inmate trust fund. [034 C.R.

42; 402 C.R. 27]. See T EX. G OV’T C ODE A NN. § 501.014 (West 2012).




                                    2
                  SUMMARY OF THE ARGUMENT

         The “consolidated court costs” assessed against convicted

persons is an unconstitutional tax under the separation of powers

clause of the Texas Constitution, as the funds collected pay for the

operation of Texas courts. The judgments in each of these cases should

therefore be modified to delete the $133 charge from the assessed court

costs.

                  ARGUMENT AND AUTHORITIES

Jurisdiction

         Pursuant to Texas Rule of Appellate Procedure 25.2(a)(2), the

Clerk’s Records contains the Trial Court’s Certifications of Defendant’s

Right of Appeal, which correctly states that these are not plea

bargained cases, and the defendant has the right to appeal. [034 C.R. 44;

402 C.R. 29]. See T EX. R. A PP. P. 25.2(a)(2).




                                       3
                POINT OF ERROR ONE (RESTATED)

I.     Section 133.102(a)(1) of the Texas Local Government Code by
       which the “consolidated court cost” in the amount of $133 was
       assessed is unconstitutional.3

A.     Preservation of Error

       Rule 33.1 of the Texas Rules of Appellate Procedure generally

requires that a complaint on appeal be presented first to the trial court

below or it is waived on review.4 See T EX. R. A PP. P. 33.1. However, the

Court of Criminal Appeals has recently determined that a complaint on

appeal regarding the imposition of court costs upon the revocation of

community supervision can be raised for the first time on appeal. See

Johnson v. State, 423 S.W.3d 385, 390-91 (Tex. Crim. App. 2014). The

court pointed out that while a defendant will be sentenced in open

court, the written judgment is prepared at a later date. Id. (citation

omitted). Therefore, most defendants would not even be aware of the


3
 Undersigned counsel is aware that currently-binding authority holds
directly against the argument presented here. See e.g., Peraza v. State, 467
S.W.3d 508 (Tex. Crim. App. 2015, cert. filed). The issue is presented here
to preserve for further review.
4
 To preserve a complaint for appellate review, a party, at trial, must
present and obtain a ruling on the complaint that states “the grounds for
the ruling that [it] sought from the trial court with sufficient specificity to
make the trial court aware of the complaint, unless the specific grounds
were apparent from the context.” TEX. R. APP. P. 33.1 (a); see Lopez v. State,
253 S.W.3d 680, 684 (Tex. Crim. App. 2008).

                                       4
amount of any costs or fees assessed as they are most often not assessed

in open court, nor is an itemized bill presented with which to

determine the accuracy of the assessed fees or costs. Id.

      The Johnson court supported its decision by citing to its opinion

in Mayer v. State, 309, S.W.3d 552 (Tex. Crim. App. 2010). In Mayer, the

appellant challenged the imposition of attorney’s fees when his

probation was revoked. Specifically, he claimed that there was no basis

in the record to support the trial court’s determination that the

appellant had financial resources and, as a result, the ability to pay at

least a portion of the cost of his defense. Mayer, 309 S.W.3d at 552; see

also T EX. C RIM. P ROC. C ODE A NN. § 26.05(g) (West Supp. 2015)

(requiring a judicial determination of whether a defendant has the

financial resources to offset in whole, or part, the costs of the legal

services provided to the defendant). The court held that since Mayer’s

complaint on appeal argued that there was insufficient evidence that

he had the financial resources and ability to pay the assessed attorney

fees and that insufficient evidence points of error may be raised for the

first time on appeal, Mayer’s complaint was not waived by his failure

to object in the trial court. See Mayer, 309 S.W.3d at 556.



                                    5
      B.     Standard of Review

      Whether a statute is facially constitutional is a question of law

that an appellate court will review de novo. Ex Parte Lo, 424 S.W.3d 10,

14 (Tex. Crim. App. 2013); Lawson v. State, 283 S.W.3d 438, 440 (Tex.

App.–Fort Worth 2009, pet. ref’d). When reviewing a constitutional

challenge, the court must “presume that the statute is valid and that the

legislature was neither unreasonable nor arbitrary in enacting it.” Lo,

424 S.W.3d at 14; see also State v. Rosseau, 396 S.W.3d 550, 557 (Tex.

Crim. App. 2013). If the statute can be construed in two different ways,

one of which sustains its validity, a reviewing court will apply the

interpretation that sustains its validity. Maloney v. State, 294 S.W.3d 613,

625 (Tex. App.–Houston [1st Dist.] 2009, pet. ref’d).

      The party challenging the statute bears the burden of

establishing the statute’s unconstitutionality. Rosseau, 396 S.W.3d at

557; Curry v. State, 186 S.W.3d 39, 42 (Tex. App.–Houston [1st Dist.]

2005, no pet.). “A facial challenge to a statute is the most difficult

challenge to mount successfully because the challenger must establish

that no set of circumstances exists under which the statute will be

valid.” Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992); see



                                     6
also Rosseau, 396 S.W.3d at 557. This Court “must uphold the challenged

statute if it can be reasonably construed in a manner consistent with the

legislative intent and is not repugnant to the Constitution.” Curry, 186

S.W.3d at 42.

      C.     Section 133.102(a)(1)

      The trial court assessed the cost pursuant to section 133.102(a)(1)

of the Texas Local Government Code, which mandates that a person

convicted of a felony must pay $133 “as a court cost, in addition to all

other costs.” See T EX. L OC . G OV’T C ODE A NN. § 133.102(a)(1) (West

Supp. 2015). The collected amounts must be remitted to the state

comptroller, who in turn must allocate this money to fourteen specified

“accounts and funds:”

(1) abused children’s counseling;

(2) crime stoppers assistance;

(3) breath alcohol testing;

(4) Bill Blackwood Law Enforcement Management Institute;

(5) law enforcement officers standards and education;

(6) comprehensive rehabilitation;

(7) operator’s and chauffeur’s license;



                                     7
(8) criminal justice planning;

(9) an account in the state treasury to be used only for the

establishment and operation of the Center for the Study and Prevention

of Juvenile Crime and Delinquency at Prairie View A & M University;

(10) compensation to victims of crime fund;

(11) emergency radio infrastructure account;

(12) judicial and court personnel training fund;

(13) an account in the state treasury to be used for the establishment

and operation of the Correctional Management Institute of Texas and

Criminal Justice Center Account; and

(14) fair defense account.

Id. §§ 133.102(b), (e) (West Supp. 2015). Subsection (e) provides that the

designated funds “may not receive less than” certain specified

percentages of the collected amounts. Id. Section 133.058 permits a

municipality or county to retain 10 percent of collected amounts as a

“service fee.”

      D.     Discussion

       The trial court’s assessment of a “consolidated court cost”

against Mr. Amie violates the separation of powers clause of the Texas



                                    8
Constitution.5 In Ex Parte Carson, 143 Tex. Crim. 498, 159 S.W.2d 126

(1942), rejected by, Peraza v. State, 467 S.W.3d 508 (Tex. Crim. App. 2015),

the Texas Court of Criminal Appeals considered whether it was

constitutionally permissible to impose a $1 fee as a court cost in all

cases filed in counties with more than eight district courts or more than

three county courts at law. Carson, 159 S.W.2d at 127. The revenue

collected from the $1 fee was directed to the “County Law Library

Fund” and “available to be used for certain costs and expenses in

acquiring, maintaining and operating a law library available to the

judges of the courts and to the attorneys of litigants.” Id. The court held

that the fee constituted an unconstitutional tax, not a legitimate court

cost, because it was “neither necessary nor incidental to the trial of a



5
    Article II, § 1 of the Texas Constitution holds:

         DIVISION OF POWERS; THREE SEPARATE DEPARTMENTS;
         EXERCISE OF POWER PROPERLY ATTACHED TO OTHER
         DEPARTMENTS. The powers of the Government of the State of
         Texas shall be divided into three distinct departments, each of
         which shall be confided to a separate body of magistracy, to wit:
         Those which are Legislative to one; those which are Executive to
         another, and those which are Judicial to another; and no person, or
         collection of persons, being of one of these departments, shall
         exercise any power properly attached to either of the others, except
         in the instances herein expressly permitted.

TEX. CONST . art. II § 1.

                                         9
criminal case.” Id. at 127, 130. The court cautioned that to hold

otherwise,

      would lead into fields of expenditures which may as well
      include the cost of the court houses, the automobiles which
      officers use to apprehend criminals and even the roads upon
      which they ride. If something so remote as a law library may be
      properly charged to the litigant on the theory that it better
      prepares the courts and the attorneys for the performance of
      their duties, it occurs to us that we might as logically tax an item
      of cost for the education of such attorneys and judges and even
      the endowments of the schools which they attend.

Id. at 127. Like the law library fee in Carson, here the proceeds of the

consolidated court costs assessed against convicted persons is used to

provide services that are neither necessary nor incidental to the trial of

a criminal case.

      Applying the Court of Criminal Appeals’ strict standard to the

statute at issue in the present case, none of the fourteen programs

funded by collection of the consolidated court cost from convicted

defendants, pursuant to section 133.102, pass constitutional muster.

Certainly, there is no indication in the record that any of the funded

items represent actual costs incurred in Mr. Amie’s trial. More

importantly, none of the fourteen is less remote in its relationship to the

court proceedings in this case than was the funding for a law library to



                                    10
be used by judges and attorneys in Carson.

       Court costs do not constitute part of the guilt or sentence of a

criminal defendant–“they are ‘a nonpunitive recoupment of the costs

of judicial resources expended in connection with the trial of a case.’”

Johnson, 423 S.W.3d at 390 (quoting Armstrong v. State, 340 S.W.3d 759,

767 (Tex. Crim. App. 2011)). Any court cost that is “neither necessary

nor incidental to the trial of a criminal case” is “not a legitimate” cost

of court. Carson, 159 S.W.2d at 127-130. Rather, such a court cost is, in

reality, a tax.

       A requirement that courts assess such a cost would render the

courts “tax gatherers” in violation of the separation of powers doctrine.

This is because requiring courts to collect a tax (albeit one disguised as

a court cost) imposes an executive branch function on the judicial

branch. The Attorney General has explained in an opinion that “court

fees that are used for general purposes are characterized as taxes, and

a tax imposed on a litigant interferes with access to the courts in

violation of the constitution.” Tex. Atty. Gen. Op., No.JC-0158 (1999).

       Making convicted criminals pay for certain programs, rather

than obtaining funding through other means of revenue, may seem an



                                   11
attractive, expedient, and fair option. Nonetheless, this Court is bound

to follow the precedent established by the Court of Criminal Appeals.

See T EX. C ONST. art. V, § 5(a).

       As stated, under the Court of Criminal Appeals opinion in

Carson, none of the fourteen items funded under Local Government

Code section 133.102 constitute a cost necessary or incidental to the trial

of a criminal case. See Carson, 159 S.W.2d at 130. These are therefore not

legitimate items to be assessed against criminal defendants.

Accordingly, section 133.102 is unconstitutional and the $133 should be

deleted from the trial court’s judgment.

                                    PRAYER

       PREMISES       CONSIDERED,          Appellant   Willie   Lee   Amie

respectfully requests that this Court sustain the points of error in this

brief and amend the judgment in this case as set forth herein. Mr. Amie

further requests that he be granted any such further relief to which he

may show himself justly entitled.

                                           Respectfully submitted,

                                           /s/ Abe Factor
                                           Abe Factor
                                           TBN: 06768500
                                           Factor, Campbell & Collins


                                      12
                                        Attorneys at Law
                                        5719 Airport Freeway
                                        Fort Worth, Texas 76117
                                        Phone: (817) 222-3333
                                        Fax: (817) 222-3330
                                        Attorney for Appellant
                                        Willie Lee Amie, Jr.

                 CERTIFICATE OF COMPLIANCE

       I hereby certify that the word count for the portion of this filing
covered by Rule 9.4(i)(1) of the Texas Rules of Appellate Procedure is
3,048.

                                               /s/Abe Factor
                                               Abe Factor

                     CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument
has been furnished to counsel for the State/Appellee either by a
manner compliant with the rules on this 17th day of December, 2015.

                                               /s/ Abe Factor
                                               Abe Factor




                                   13
