Affirmed as Modified and Opinion on Remand filed June 10, 2014.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-12-00653-CR

                  BENNETT KEITH O’BANNON, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 337th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1310491

                           OPINION ON REMAND
      Appellant Bennett Keith O’Bannon appeals his conviction for indecency
with a child. On original submission, appellant argued (1) the trial court reversibly
erred in allowing the State to present testimony from two outcry witnesses
regarding the same alleged conduct; (2) the judgment is invalid because it
contained sheriff’s fees that are not supported by the record; (3) the assessed DNA
court costs are unconstitutional as a matter of law; and (4) the trial court erred in
not granting a hearing on appellant’s motion for new trial or motion in arrest of
judgment. In a single cross-issue, the State asked the court to modify the judgment
to correct the amount of jail time credited to appellant’s sentence. We modified the
trial court’s judgment to delete the specific amount of costs assessed and reflect jail
time credited from July 8, 2011, through July 11, 2012. O’Bannon v. State, No. 14-
12-00653-CR; 2013 WL 4806994 (Tex. App.—Houston [14th Dist.] Sept. 10,
2013), vacated and remanded, No. PD-1346-13; 2014 WL 1512960 (Tex. Crim.
App. Apr. 16, 2014). The Court of Criminal Appeals vacated our judgment and
remanded in light of its opinion in Johnson v. State, 423 S.W.3d 385 (Tex. Crim.
App. 2014).

      Sheriff’s Fees

      In his second issue appellant argues the judgment is invalid because it
contains fees from the sheriff that are erroneous and unsupported. On April 28,
2014, this court received a supplemental clerk’s record containing a certified bill of
costs listing, among other costs, $110 for “Summoning Witness/Mileage.” The
record reflects that 11 witnesses were summoned. Article 102.011(a)(3) of the
Texas Code of Criminal Procedure requires that a defendant pay $5 for each
witness summoned. Both parties agree, and the record supports, that 11 witnesses
were summoned at three different times.

      Appellant argues, “Either the cost is $55 or $165. The Sheriff’s fee of $110
is wholly unsupported by any documentation.” We disagree. Although the sheriff’s
fee could have been as much as $165, the record reflects that 11 witnesses were
summoned at least twice, which supports the cost of $110. Because the cost of
$110 for summoning witnesses is supported by the record, we overrule appellant’s
second issue.

      DNA Testing Fee

      In his third issue appellant contends the judgment is invalid because the


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assessed DNA Testing Fee is unconstitutional as a matter of law. The certified bill
of costs in the supplemental clerk’s record lists, among other costs, $250 for a
“DNA Testing Fee.” This fee is authorized by article 102.020 of the Texas Code of
Criminal Procedure, entitled, “Costs Related to DNA Testing.” As pertinent here,
article 102.020 provides:

       (a) 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;
                                         *****
       (h) Except as provided by Subsection (h-1), the comptroller shall
       deposit 35 percent of the funds received under this article in the state
       treasury to the credit of the state highway fund and 65 percent of the
       funds received under this article to the credit of the criminal justice
       planning account in the general revenue fund.

Tex. Code Crim. Proc. art. 102.020.
       Appellant argues that article 102.020(h) is facially unconstitutional under the
separation of powers clause of the Texas Constitution, which provides:

       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.

According to appellant, the uses specified in article 102.020(h) for the DNA
Testing Fee collected under article 102.020(a)(1) are not properly characterized as
costs of court; therefore, appellant contends that article 102.020(h) impermissibly

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requires the judicial branch to perform an executive function by collecting a tax.

      Appellant argues that while the DNA fee might be considered a necessary
expense for DNA testing, the fee neither goes toward DNA testing or for the
functions of the courts. Instead, 35 percent of the fee goes to the state highway
fund, and 65 percent to the criminal justice planning account in the general revenue
fund. Appellant thus contends that the statute impermissibly compels courts to
collect a tax in violation of separation of powers principles.

      In addressing a constitutional challenge, this court “must begin with the
presumption that the statute is valid and that the Legislature did not act arbitrarily
or unreasonably in enacting it.” State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim.
App. 2013). The party challenging the statute “has the burden to establish its
unconstitutionality.” Id. “[T]o prevail on a facial challenge, a party must establish
that the statute always operates unconstitutionally in all possible circumstances.”
Id.

      Appellant principally relies on Ex parte Carson, 143 Tex. Crim. 498, 159
S.W.2d 126, 127 (1942), to meet this burden. Carson invalidated a statute
requiring the collection of $1 in costs in civil and criminal cases in certain counties
to fund law libraries in those counties. Id. The Court of Criminal Appeals
invalidated the statute because (1) the $1 cost was “neither necessary nor incidental
to the trial of a criminal case [and thus was] not a legitimate item to be so taxed”
against a criminal defendant; (2) the statute was a local or special law, which the
state legislature was not authorized to enact; and (3) collection of this cost only
from defendants in certain counties was discriminatory. Id. at 127, 129–30. Noting
the conflicting decisions on the issue of what can be considered a proper cost in the
trial of a case, the court noted:

      On one side the courts take the view that the costs may be taxed as a
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      proper item because the money is used in the establishment and
      maintenance of a law library which, it is stated, is a legitimate charge
      on the litigants. We find ourselves unable to accept that view. Such
      reasoning 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. Many other illustrations might be used appropriately to
      show the fallacy of such contention and the inevitable result that
      litigation in the courts would be prohibitive. We, therefore, conclude,
      as several states have, that the tax imposed by the bill is not and
      cannot be logically considered a proper item of cost in litigation,
      particularly in criminal cases.

Id. at 127.

      Earlier this year, a divided panel of this court upheld “consolidated court
costs”1 in the face of a similar constitutional challenge. See Salinas v. State, 426
S.W.3d 318 (Tex. App.—Houston [14th Dist.] 2014, pet. filed). In Salinas,
appellant also relied on the holding in Carson to support his assertion that the
separation of powers doctrine prohibited assessment of court costs that were not
necessary or incidental to the trial of a criminal case. Id. at 326. We agree with the
majority’s assertion that “[t]here is room to discuss whether Carson can bear the
weight appellant would have it carry. Carson’s passing discussion of whether the
$1 fee constitutes a ‘tax’ [the entirety of which is quoted above] is both
abbreviated and bereft of citations to supporting authority.” Id.

      Assuming arguendo that Carson requires a statute imposing court costs to be



      1
          Tex. Loc. Gov’t Code § 133.102.

                                            5
“necessary or incidental to the trial of a criminal case,”2 appellant’s facial
constitutional challenge to section 102.020(h) fails.

      In this case, as in Salinas, appellant has failed to satisfy his burden to show
that the statute is invalid in all possible applications because he has not established
how the funds will be used once they are distributed to the state highway fund and
the criminal justice planning account. Appellant draws inferences from the fact that
the criminal justice planning account is established by the governor’s office, and
that the funds flow “directly to the executive branch and [are] used for policy
purposes.” With regard to the portion of the cost that is directed to the state
highway fund, appellant infers from the title of the fund that the funds collected
will not be used for purposes necessary or incidental to DNA collection or testing.

      A review of the statutes related to DNA collection and costs reveals that the
funds collected as a DNA Testing Fee are sufficiently related to the collection and
testing of DNA in criminal cases. Article 102.020 requires assessment of a DNA
Testing Fee of “$250 on conviction of an offense listed in Section 411.1471(a)(1)
of the Government Code.” Tex. Code Crim. Proc. art. 102.020. Section 411.1471,
entitled “DNA Records of Persons Charged with or Convicted of Certain Felonies”
requires a defendant to “provide to a law enforcement agency one or more
specimens for the purpose of creating a DNA record.” Tex. Gov’t Code §
411.1471(b). It also requires law enforcement agencies to preserve the specimen
and maintain a record of the collection of the specimen. Id. § 411.1471(d). Article
102.056(e) of the Code of Criminal Procedure, titled “Distribution of Funds,”
permits grants from the criminal justice planning account to the Department of
Public Safety “for expenses incurred in performing duties imposed . . . under
Section 411.1471.” Therefore, we cannot say that the 65 percent of the DNA

      2
          Carson, 159 S.W.2d at 130.

                                          6
Testing Fee that is distributed to the criminal justice planning account is so
unrelated to the collection and maintenance of DNA records that it could be
considered a “tax” under Carson.

      With regard to the remaining 35 percent directed toward the state highway
fund, those funds are to be used, among other uses, “by the Department of Public
Safety to police the state highway system and to administer state laws relating to
traffic and safety on public roads.” Tex. Transp. Code § 222.001(a)(3). One of the
functions performed by DPS is establishment and maintenance of “a computerized
database that serves as the central depository in the state for DNA records.” Tex.
Gov’t Code § 411.142(a). Therefore, these inter-connected provisions permit the
DNA Testing Fee to be redistributed through the state highway fund to the
Department of Public Safety for legitimate criminal justice purposes.

      Because appellant has failed to satisfy his burden to show that the statute is
invalid in all possible applications, we overrule appellant’s third issue.

      Hearing on Motion for New Trial

      In his fourth issue appellant argues the trial court erred in not granting a
hearing on the motion for new trial or the motion in arrest of judgment.

      Appellant filed a motion for new trial in which he argued the sheriff’s fee
discrepancy and the constitutionality of the DNA Testing Fee. Attached to the
motion was (1) the court’s judgment; (2) a computer printout of the costs assessed;
(3) the order to the sheriff’s office to prepare and provide a copy of the sheriff’s
fee record; (4) the sheriff’s fee record; (5) an order to include a bill of costs in the
appellate record; and (6) copies of the subpoenas issued. Appellant also filed a
motion in arrest of judgment in which he made identical arguments and attached
identical documents as those made and attached to the motion for new trial.


                                           7
Appellant properly presented the motions and requested a hearing. Neither motion
contains an affidavit stating which matters are not determinable from the record.
The trial court denied appellant’s request for a hearing.

      While not required by statute, if a motion for new trial alleges facts outside
the record, it must be supported by an affidavit. Reyes v. State, 849 S.W.2d 812,
816 (Tex. Crim. App. 1993); Bearden v. State, 648 S.W.2d 688, 690 (Tex. Crim.
App. 1983); Flores v. State, 18 S.W.3d 796, 798 (Tex. App.—Austin 2000, no
pet.); see Tex. R. App. P. 21.2. A motion for new trial alleging facts outside the
record unsupported by affidavit is fatally defective, and the trial court does not err
in refusing to entertain such motion. Bearden, 648 S.W.2d at 690; Flores, 18
S.W.3d at 798.
      We conclude that the trial court did not abuse its discretion in not granting
appellant a hearing and overrule appellant’s fourth issue.

      The court’s opinion in Johnson did not affect this court’s original disposition
of appellant’s first issue and the State’s cross-point. For that reason, we adhere to
our original disposition in parts I and IV of our previous opinion. See O’Bannon v.
State, No. 14-12-00653-CR; 2013 WL 4806994 at *1, *4.

      We modify the trial court’s judgment to reflect jail time credited from July
8, 2011, through July 11, 2012. We affirm the judgment as modified.




                                              /s/    Marc W. Brown
                                                     Justice



Panel consists of Justices Christopher, McCally, and Brown.
Publish — TEX. R. APP. P. 47.2(b).
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