                                                                   ACCEPTED
                                                               01-14-00676-CR
                                                    FIRST COURT OF APPEALS
                                                            HOUSTON, TEXAS

    No. 01-14-00675-CR
                                                          6/23/2015 2:51:33 PM
                                                         CHRISTOPHER PRINE
                                                                        CLERK
    No. 01-14-00676-CR
              In the
       Court of Appeals                       FILED IN
                                       1st COURT OF APPEALS
              For the                      HOUSTON, TEXAS
    First District of Texas            6/23/2015 2:51:33 PM
           At Houston                  CHRISTOPHER A. PRINE
                                               Clerk
      ♦

     Nos. 1394947 & 1394948
In the 174th Criminal District Court
      Of Harris County, Texas
      ♦

 ISRAEL MONTOYA ALCARAZ
              Appellant
                 V.
     THE STATE OF TEXAS
              Appellee

      ♦

STATE’S APPELLATE BRIEF
      ♦

                    DEVON ANDERSON
                    District Attorney
                    Harris County, Texas
                    BRIDGET HOLLOWAY
                    Assistant District Attorney
                    Harris County, Texas
                    Texas Bar No. 24025227
                    holloway_bridget@dao.hctx.net
                    AMY MCCAULEY
                    Assistant District Attorney
                    Harris County, Texas
                    Harris County Criminal Justice Center
                    1201 Franklin, Suite 600
                    Houston, Texas 77002
                    Tel.: 713·755·5826

ORAL ARGUMENT NOT REQUESTED
                 STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, the State does not

request oral argument.


                         IDENTIFICATION OF THE PARTIES

      Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all

interested parties is provided below.

      Complainant, victim, or aggrieved party:

             XX—a minor

      Counsel for the State:

             Devon Anderson  District Attorney of Harris County
             Bridget Holloway  Assistant District Attorney on appeal
             Amy McCauley  Assistant District Attorney at plea

      Appellant or criminal defendant:

             Israel Montoya Alcaraz

      Counsel for Appellant:

             Alexander Bunin  Chief Public Defender
             Angela L. Cameron —Assistant Public Defender on appeal
             Mark Thering —Attorney at plea

      Trial Judge:

             Honorable Ruben Guerrero  Presiding Judge
                                                  TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT .......................................................... 1
IDENTIFICATION OF THE PARTIES ................................................................................ 1
TABLE OF CONTENTS........................................................................................................... 2
INDEX OF AUTHORITIES .................................................................................................... 3
STATEMENT OF THE CASE ................................................................................................ 5
STATEMENT OF FACTS ....................................................................................................... 5
SUMMARY OF THE ARGUMENT ..................................................................................... 7
REPLY TO APPELLANT’S THIRD ISSUE PRESENTED............................................... 8
    Appellant’s judgment should be modified to correctly indicate he did
    not waive his right to appeal.
REPLY TO APPELLANT’S FIRST ISSUE PRESENTED ................................................ 8
    This Court should wait for the Court of Criminal Appeal’s opinion in
    Peraza v. State, 457 S.W.3d 134 (Tex. App. —Houston [1st Dist.] 2014,
    pet. granted Mar. 25, 2015), before ruling on appellant’s challenge to
    the “DNA Testing Fee.”
REPLY TO APPELLANT’S SECOND ISSUE PRESENTED..........................................10

 Analysis ................................................................................................................................... 10
     Because the record supports that appellant was arrested for three
     felonies and convicted for two, and because the Code of Criminal
     Procedure demands the $5 “Arrest w/out Warrant/Capias” fee upon
     conviction, the trial court did not err in assessing the court cost.
CONCLUSION .........................................................................................................................13
CERTIFICATE OF SERVICE AND WORD LIMIT COMPLIANCE ....................... 14




                                                                       2
                                      INDEX OF AUTHORITIES

CASES
Cardenas v. State,
  403 S.W.3d 377
  (Tex. App. —Houston [1st Dist.], aff’d 423 S.W.3d 396 (Tex. Crim. App. 2014) 11

Ex parte Carson,
  159 S.W.2d 126 (Tex. Crim. App. 1942)........................................................................... 8

Garza v. State,
  425 S.W.3d 649
  (Tex. App. —Houston [14th Dist.] 2014, no pet.) ...................................................... 12

Guzman v. State,
  No. 01-11-00862-CR, 2013 WL 4003791
  (Tex. App. —Houston [1st Dist.] Aug. 6, 2013, pet ref’d) ......................................... 12

Johnson v. State,
   423 S.W.3d 385 (Tex. Crim. App. 2014)........................................................................ 10

Mouton v. State,
  No. 01-12-00642-CR, No. 01-12-00643-CR, 2013 WL 3522650
  (Tex. App. —Houston [1st Dist.] July 11, 2013, no pet.) ............................................ 12

O’Bannon v. State,
  435 S.W.3d 378
  (Tex. App. —Houston [14th Dist.] 2014, no pet.) ........................................................ 9

Peraza v. State,
  457 S.W.3d 134
  (Tex. App. —Houston [1st Dist.] 2014, pet. granted Mar. 25, 2015) ....................... 8

Peyronel v. State,
  446 S.W.3d 151
  (Tex. App. —Houston [1st Dist.] pet. granted Dec. 17, 2014).................................. 12




                                                         3
STATUTES
TEX. CODE CRIM. PROC. ANN.
  art. 102.020 (West 2006) .................................................................................................... 8
TEX. CODE CRIM. PROC. ANN.
  art. 102.011 (West 2006) .............................................................................................. 11, 12
TEX. CODE CRIM. PROC. ANN.
  art. 42.16 (West 2006) ....................................................................................................... 10


RULES
TEX. R. APP. P. 38.2(a)(1)(A) .....................................................................................................1
TEX. R. APP. P. 39.1 .......................................................................................................................1
TEX. R. APP. P. 9.4(g) ..................................................................................................................1




                                                                     4
TO THE HONORABLE COURT OF APPEALS:


                          STATEMENT OF THE CASE

      Appellant, Israel Montoya Alcaraz, was charged with one count of

aggravated sexual assault of a child and one count of possession of child

pornography. (CR947 at 24; CR948 at 16). Appellant entered a plea of “guilty” to

both offenses and his cases were reset for a presentence investigation (PSI).

(CR947 at 32; CR948 at 24; RRI at 88-89). After the PSI hearing, appellant was

sentenced to confinement for 50 years and 10 years respectively, to run

concurrently. (CR947 at 62; CR948 at 37; RRI at 88-89). Written notices of

appeal were timely filed. (CR947 at 67; CR948 at 40).

                       ♦


                            STATEMENT OF FACTS

      Appellant was indicted for aggravated sexual assault of a child under the

age of 14 and for possession of child pornography. No enhancements were alleged.

(CR947 at 24; CR948 at 16). Appellant entered a plea of “guilty” to both charges

without agreed punishment recommendations.           Appellant signed a written

Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession

in which he agreed “I understand the above allegations and I confess that they are

true and that the acts alleged above were committed on June 2, 2013.” (CR947 at 32;


                                        5
CR948 at 24) (emphasis handwritten on forms). The court costs assessed against

appellant included a $250 “DNA Testing Fee” and a $5 “Arrest w/o

Warrant/Capias.” (CR947 at 64; CR948 at 39). While initially the trial court

certified that appellant did not have the right to appeal, the trial court properly

changed that ruling. (RR 1-29-15).

                       ♦




                                        6
                       SUMMARY OF THE ARGUMENT

      Appellant’s judgment should be modified to correctly indicate he did not

waive his right to appeal. Furthermore, this Court should wait for the Court of

Criminal Appeal’s opinion in Peraza v. State, 457 S.W.3d 134 (Tex. App. —Houston

[1st Dist.] 2014, pet. granted Mar. 25, 2015), before ruling on appellant’s challenge

to the “DNA Testing Fee.”       Lastly, it is submitted that the $5 “Arrest w/o

Warrant/Capias” fee is supported by the record and proper.


                       ♦




                                         7
               REPLY TO APPELLANT’S THIRD ISSUE PRESENTED

         In his third issue presented on appeal, appellant asks this Court to reform

the judgment to reflect that appellant did not waive his right to appeal. Because

the record shows appellant did not waive his right to appeal, the State does not

oppose this request.      Appellant’s third issue presented on appeal should be

sustained.

                         ♦


                REPLY TO APPELLANT’S FIRST ISSUE PRESENTED

         Relying on Peraza v. State, 457 S.W.3d 134 (Tex. App. —Houston [1st Dist.]

2014, pet. granted Mar. 25, 2015), appellant challenges the trial court’s assessment

of the “DNA Testing Fee” in his bill of costs as unconstitutional. Appellant

requests this Court modify each judgment to delete the $250 charge from court

costs.

         In Peraza, this Court held that TEX. CODE CRIM. PROC. art. 102.020, “Costs

related to DNA testing,” authorizes an unconstitutional tax because the costs it

imposes are not “necessary or incidental to a criminal trial.” Peraza, 457 S.W.3d at

141 (citing Ex parte Carson, 159 S.W.2d 126 (Tex. Crim. App. 1942)). Not pointed

out by appellant, however, is that the Fourteenth Court of Appeals has disagreed



                                          8
with this Court’s ruling in Peraza. See O’Bannon v. State, 435 S.W.3d 378 (Tex. App.

—Houston [14th Dist.] 2014, no pet.).

      After appellant filed his appellate brief in this case, the Court of Criminal

Appeals granted petition for discretionary review in Peraza. Briefs have been filed

and the Court of Criminal Appeals heard argument on May 20, 2015, regarding

whether the $250 DNA Testing Fee is constitutional; so guidance from the Court

of Criminal Appeals is forthcoming to reconcile Peraza and O’Bannon. The State

requests this Court delay its ruling on this issue until the Court of Criminal

Appeals has spoken.

                       ♦




                                         9
                REPLY TO APPELLANT’S SECOND ISSUE PRESENTED

          Appellant challenges another court cost in his second issue presented on

appeal. Appellant argues the $5 “Arrest w/o Warrant/Capias” part of the Sheriff’s

fee should be deleted from the bill of costs because the bill of costs also shows a

$50 “Serving Capias” fee and “[o]ne cannot be arrest[ed] both with and without a

warrant or capias.” 1 Because the record supports that appellant was arrested for

three felonies and convicted on two, and because the Code of Criminal Procedure

demands the $5 “Arrest w/out Warrant/Capias” fee upon conviction, the trial

court did not err in assessing the court cost.

                                        ANALYSIS

          The assessment of court costs on appeal is reviewed to determine if there is

a basis for the cost, not to determine if there was sufficient evidence offered at trial

to prove each cost. Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014). If

the defendant receives any punishment other than a fine, the judgment must

declare the costs against the defendant and order the collection of those costs. See

TEX. CODE CRIM. PROC. ANN. art. 42.16 (West 2006). When a specific amount of

court costs is written in the judgment, an appellate court errs when it deletes the



1
    Appellant’s brief at 12.


                                           10
specific amount if there is a basis for the cost. Johnson, 423 S.W.3d at 389.

Although it is the most expedient and preferable method to sustain statutorily

authorized and assessed court costs, a bill of costs is not required to support the

amount of court costs if the reviewing court concludes that the assessed costs are

supported by facts in the record. Id. at 395.

      Because the record demonstrates that appellant pled guilty and was thus

convicted in district court of two felonies, felonies under section 21.011 of the

Texas Penal Code, a factual basis exists for both $5 “Arrest w/o Warrant/Capias”

and $50 “Serving Capias” fees. See TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(1)

(West 2006) (defendant convicted of felony must pay $5 when a peace officer

makes a warrantless arrest); TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(2) (West

2006) (a defendant convicted of a felony must pay $50 for executing or processing

arrest warrant); see also TEX. CODE CRIM. PROC. ANN. art. 102.011(e) (West 2006)

(“A fee under Subsection ... (a)(2) ... shall be assessed on conviction, regardless of

whether the defendant was also arrested at the same time for another offense, and

shall be assessed for each arrest made of a defendant arising out of the offense for

which the defendant has been convicted.”)).

      While appellant claims it is impossible to be arrested both with and

without a warrant, both fees have been assessed and upheld in other cases. See

Cardenas v. State, 403 S.W.3d 377 (Tex. App. —Houston [1st Dist.], aff’d 423 S.W.3d


                                          11
396 (Tex. Crim. App. 2014); Peyronel v. State, 446 S.W.3d 151 (Tex. App. —Houston

[1st Dist.] pet. granted Dec. 17, 2014); 2 Garza v. State, 425 S.W.3d 649 (Tex. App. —

Houston [14th Dist.] 2014, no pet.); Guzman v. State, No. 01-11-00862-CR, 2013 WL

4003791 (Tex. App. —Houston [1st Dist.] Aug. 6, 2013, pet ref’d); Mouton v. State,

No. 01-12-00642-CR, No. 01-12-00643-CR, 2013 WL 3522650 (Tex. App. —

Houston [1st Dist.] July 11, 2013, no pet.). Furthermore, while the record here

indicates appellant had a warrant issued for his arrest, he was arrested for three

felonies (evading charge was dropped). Even assuming the arrest warrant was for

both aggravated sexual assault and for possession of child pornography, appellant

had a third arrest for evading, which would have been without a warrant, but

arose from the convicted offenses. (RRPSI at 17, 89). See TEX. CODE CRIM. PROC.

ANN. art. 102.011(e) (West 2006). Appellant’s second issue on appeal should be

overruled.

                            ♦




2
    Petition for discretionary granted on an unrelated issue.

                                               12
                                CONCLUSION

      It is respectfully submitted that appellant’s judgment be modified to

indicate he did not waive his right to appeal. It is further submitted that this

Court should wait for the Court of Criminal Appeal’s opinion in Peraza before

ruling on appellant’s challenge to the “DNA Testing Fee.” Lastly, it is submitted

that the $5 “Arrest w/o Warrant/Capias” fee is supported by the record and

proper.




                                                DEVON ANDERSON
                                                District Attorney
                                                Harris County, Texas


                                                /s/ Bridget Holloway

                                                BRIDGET HOLLOWAY
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002
                                                713.755.5826
                                                Texas Bar No. 24025227
                                                holloway_bridget@dao.hctx.net




                                       13
        CERTIFICATE OF SERVICE AND WORD LIMIT COMPLIANCE

      This is to certify: (a) that the word count of the computer program used to

prepare this document reports that there are 2036 words in the document; and (b)

that the undersigned attorney requested that a copy of this document be served to

appellant’s attorneys via TexFile at the following emails on June 23, 2015:



      Angela L. Cameron
      Assistant Public Defender
      Email: angela.cameron@pdo.hctx.net




                                                  /s/ Bridget Holloway

                                                  BRIDGET HOLLOWAY
                                                  Assistant District Attorney
                                                  Harris County, Texas
                                                  1201 Franklin, Suite 600
                                                  Houston, Texas 77002
                                                  713.755.5826
                                                  Texas Bar No. 24025227
                                                  holloway_bridget@dao.hctx.net




                                         14
