                                                                          ACCEPTED
                                                                      14-12-00378-CR
                                                      FOURTEENTH COURT OF APPEALS
                                                                   HOUSTON, TEXAS
                                                                8/31/2015 11:57:18 AM


       No. 14-12-00378-CR
                                                                CHRISTOPHER PRINE
                                                                               CLERK



         In the Court of Appeals for the
          Fourteenth District of Texas                FILED IN
                                               14th COURT OF APPEALS
                  at Houston                      HOUSTON, TEXAS
                                               8/31/2015 11:57:18 AM
             ♦
                                               CHRISTOPHER A. PRINE
                                                        Clerk
                   No. 1313253
        In the 228th Criminal District Court
               Harris County, Texas

             ♦

        ORLANDO SALINAS
                      Appellant
                        V.

       THE STATE OF TEXAS
                      Appellee

             ♦

     STATE’S BRIEF ON REMAND
FROM THE COURT OF CRIMINAL APPEALS
             ♦

                            DEVON ANDERSON
                            District Attorney
                            Harris County, Texas

                            BRIDGET HOLLOWAY
                            Assistant District Attorney
                            Harris County, Texas
                            Texas Bar No. 24025227
                            holloway_bridget@dao.hctx.net


                            Harris County Criminal Justice Center
                            1201 Franklin, Suite 600
                            Houston, Texas 77002
                            Tel.: 713/755-5826
                            FAX No.: 713/755-5809
                         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:

             Salvador Salinas, Sr.

      Counsel for the State:

             Devon Anderson  District Attorney of Harris County

             Bridget Holloway  Assistant District Attorney on appeal

      Appellant or criminal defendant:

             Orlando Salinas

      Counsel for Appellant:

             Jani Maselli  Assistant Public Defender at hearing and on appeal

             R.P. “Skip” Cornelius —Defense counsel at trial

      Trial Judge:

             Honorable Marc Carter  Presiding Judge at MNT hearing




                                                 i
                                                        TABLE OF CONTENTS
IDENTIFICATION OF THE PARTIES.............................................................................................. i

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

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

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

STATEMENT OF FACTS ..................................................................................................................... 3

        A.       Background............................................................................................................................. 3
        B.       This Court’s Opinion ........................................................................................................... 3
        C.       Court of Criminal Appeals .................................................................................................4

GROUND UPON REMAND ............................................................................................................... 6

                  Whether, In Accordance with Peraza, and Based Upon the
                  Statute as it is Written, Section 133.102 is Unconstitutional on
                  its Face, Without Regard to Severability Principles or to
                  Evidence of What the Funds Designated in the Statute
                  Actually Do.

    Analysis.................................................................................................................................................. 6
      A. Peraza v. State ........................................................................................................................ 6
      B. Section 133.102 ....................................................................................................................... 7

PRAYER .................................................................................................................................................... 11

CERTIFICATE OF SERVICE AND WORD LIMIT COMPLIANCE .................................... 12




                                                                              ii
                                          INDEX OF AUTHORITIES


CASES

Ex parte Carson,
  159 S.W.2d 126 (Tex. Crim. App. 1942) ....................................................................... 3, 6
LeCroy v. Hanlon,
  713 S.W.2d 335 (Tex. 1986) ................................................................................................. 3
Peraza v. State,
  __S.W.3d__, PD-0100-15,
  2015 WL 3988926 (Tex. Crim. App. July 1, 2015)............................................... passim
Salinas v. State,
  __S.W.3d__, No. PD-0419-14,
  2015 WL 3988955 (Tex. Crim. App. July 1, 2015)................................................. 2, 4, 5
Salinas v. State,
  426 S.W.3d 318 (Tex. App. —Houston [14th Dist.] 2014),
  rev.’d & remand by __S.W.3d__, 2015 3988955 (Tex. Crim. App. July 1, 2015) ........1, 8
State ex rel. Lykos v. Fine,
  330 S.W.3d 904 (Tex. Crim. App. 2011)........................................................................... 8
State v. Rosseau,
  396 W.W.3d 550 (Tex. Crim. App. 2013).................................................................... 7, 8




                                                              iii
STATUTES

TEX. LOC. GOV’T CODE ANN.
  §133.102(a)(1) (West 2012).................................................................................................. 8
TEX. LOC. GOV’T CODE ANN.
  §133.102(c) (West 2012) ....................................................................................................... 8
TEX. LOC. GOV’T CODE ANN.
  §133.102(e) (West 2012) ..................................................................................................... 10


RULES

TEX. R. APP. P. 38.2(a)(1)(A) ..................................................................................................... i




                                                                 iv
TO THE HONORABLE COURT OF APPEALS:


                           STATEMENT OF THE CASE

       Appellant, Orlando Salinas, was charged by felony indictment with injury to

an elderly. (CR at 10). Appellant entered a plea of “not guilty” to the offense.

(RRIII at 6). After the jury found appellant guilty as charged, the judge sentenced

appellant to confinement for five years. (CR at 64, 67; RRIV at 215; RRV at 9).

This Court affirmed appellant’s conviction in a published opinion delivered on

December 5, 2013. In response to a motion for rehearing by appellant, this Court

withdrew its opinion, issued a new one in its steed, and affirmed appellant’s

conviction again on March 6, 2014. Justice Jamison issued a published concurring

and dissenting opinion. See Salinas v. State, 426 S.W.3d 318 (Tex. App. —Houston

[14th Dist.] 2014), rev.’d & remand by __S.W.3d__, 2015 3988955 (Tex. Crim. App.

July 1, 2015).

       The Court of Criminal Appeals granted the following two grounds for

review on September 17, 2014:

       1. The Fourteenth Court of Appeals decision regarding the
          constitutionality of the consolidated court cost on severability
          grounds (neither raised by the State nor briefed by either party)
          failed to properly address the merits of the argument.

       2. Whether the Fourteenth Court of Appeals decision that the
          “appellant failed to satisfy his burden to show that the statute is
          invalid in all possible applications because he has not established
         what the funds designated in [Texas Local Government Code]
         section 133.102(e) actually do” is erroneous in light of clear
         precedent from this court in reviewing facial challenges to the
         constitutionality of a statute.


      On July 1, 2015, the Court of Criminal Appeals issued an opinion, sustaining

both of appellant’s issues, and reversing and remanding to this Court. See Salinas v.

State, __S.W.3d__, No. PD-0419-14, 2015 WL 3988955 (Tex. Crim. App. July 1,

2015). Subsequently, this Court has ordered the parties to address the application

of Peraza v. State, __S.W.3d__, PD-0100-15, 2015 WL 3988926 (Tex. Crim. App. July

1, 2015) upon remand.

      Because the $133 consolidated court cost assessed under Section 133.102 of

the Local Government Code was to reimburse the State for prosecuting appellant

on a felony offense and conviction, and because Section 103.102(e) outlines the

allocation of monies to certain “legitimate criminal justice purposes” all “related to

the administration of our criminal justice system,” Section 133.102 is not

unconstitutional and the trial court did not err in denying appellant’s motions for

new trial and in arrest of judgment.

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




                                          2
                              STATEMENT OF FACTS

A. Background

      A jury found appellant guilty of the felony of elderly abuse. (RRIV at 215).

Handwritten on appellant’s judgment and sentence is “$304.00” in court costs.

(CR at 67). Five days after the judgment and sentence, appellant filed a “motion

for bill of costs to be part of clerk’s record on appeal.” (CR at 76). Thereafter, the

trial court ordered the district clerk’s office to file a certified bill of costs. (CR at

81). A certified bill of costs, showing $304.00 total amount owed in court costs,

was filed. (CR at 83). Appellant then filed a motion for new trial and a motion in

arrest of judgment, contesting the constitutionality of $133.00 in “consolidated

court cost.” (CR at 83-261). Appellant’s motions were denied and appellant

appealed. (RRVII at 9).

B. This Court’s Opinion

      On appeal, relying on Ex parte Carson, 159 S.W.2d 126 (Tex. Crim. App. 1942)

and LeCroy v. Hanlon, 713 S.W.2d 335 (Tex. 1986), appellant argued the mandatory

$133 consolidated court cost acts as an unconstitutional tax because most of that

money, once collected, will be destined for accounts and funds that were not

“necessary or incidental” to the function of the courts. The State responded that

                                           3
the division and destination of the money collected for prosecuting convicted

defendants did not transform the cost into a tax and all programs receiving a

portion of the cost assists in the improvement of the criminal justice system.

      This Court held that appellant’s facial constitutional challenge to the

statute failed for two reasons: (1) appellant failed to satisfy his burden to show the

statute was “invalid in all possible applications because he has not established

what the funds designated in section 133.102(e) actually do;” and (2) even

assuming some of the destinations are not directly related to functions of the court

system, because the money can be collected in accordance with severability

principles, appellant has not shown that the statute always operates

unconstitutionally as a tax or that the entirety of the $133 should be deleted from

the trial court’s judgment.

C. Court of Criminal Appeals

      In a rather short opinion, the Court of Criminal Appeals noted that the issue

before it was whether this Court applied the proper standard to appellant’s facial

challenge to section 133.102. See Salinas, 2015 WL at *2. The Court answered in the

negative.   First, the Court concluded this Court did not properly address

appellant’s argument by requiring him “to perform an analysis of the severability of

the statute,” which is only necessary after a court finds a statute unconstitutional
                                          4
on its face, which this Court never found. See id. at *3. Second, by finding the

statute not unconstitutional because appellant failed to establish what the funds

actually do, which is irrelevant in a facial challenge to a statute, this Court further

improperly addressed appellant’s argument on appeal. See id. at *3-4. The Court of

Criminal Appeals concluded by stating: “We emphasize that demonstrating what

the funds actually do is not the same as demonstrating what the governing

statutes say about the intended use of the funds.” See id. at *4. The Court then

reversed the judgment and remanded this case for this Court to address the

following issue:

             [W]hether, based upon the statute as written, Section 133.102
             is unconstitutional on its face, without regard to severability
             principles or to evidence of what the funds designated in the
             statute actually do.

See id.

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




                                          5
                            GROUND UPON REMAND

          Whether, In Accordance with Peraza, and Based Upon the
          Statute as it is Written, Section 133.102 is Unconstitutional on its
          Face, Without Regard to Severability Principles or to Evidence of
          What the Funds Designated in the Statute Actually Do.

                                     ANALYSIS
   A. Peraza v. State

       Simultaneous with the remand in this case, the Court of Criminal Appeal’s

issued its opinion in Peraza. In Peraza, the Court of Criminal Appeals granted the

State’s petition for discretionary review to address whether a court cost labeled

“DNA record fee,” assessed pursuant to article 102.020, is an unconstitutional tax.

See id., 2015 WL at *1. The $250 cost was mandatory upon Peraza’s convictions for

aggravated sexual assault of a child under the age of 14. Much like here, and also

relying on Ex parte Carson, Peraza argued the DNA record fee was an

unconstitutional tax based upon the disbursement of the fee after collection,

including portions to the state highway fund and criminal justice planning

account. See id. at *1-3.

       Disagreeing with the First Court of Appeals’ opinion in Peraza, the Court of

Criminal Appeals noted a statute is not facially unconstitutional because there

might potentially be some remote circumstance in which it may be applied
                                         6
unconstitutionally; rather, a statute is facially unconstitutional “only if it ‘always

operates unconstitutionally in all possible circumstances.’” See id. at *5 (quoting

State v. Rosseau, 396 S.W3d 550, 556 (Tex. Crim. App. 2013)).

      Revisiting Carson, the Court found the “necessary” and “incidental” test for

determining whether a court cost is constitutional “too limiting” in the 73 years

since Carson was decided and after much change in the prosecution of criminal

cases and our criminal justice system. See Peraza, 2015 WL at *6. Carson,

therefore, is no longer controlling authority. Instead, the test going forward is

whether the allocation of court costs assessed is to be expended for “legitimate

criminal justice purposes,” defined as “one that relates to the administration of our

criminal justice system.” See id. at *7. Peraza held that the funds collected as

court costs under Article 102.020, labeled as “DNA record fee,” allow for funds to

be expended for legitimate criminal justice purposes and therefore operates

constitutionally. See id. at *10.

   B. Section 133.102

      Appellant argued to this Court and the Court of Criminal Appeals that

Section 133.102(a)(1) of the Local Government Code was facially unconstitutional

under the separation of powers clause of the Texas Constitution “[b]ecause the

[$133] consolidated court cost is primarily used to fund non-court programs” and
                                          7
effectively impermissibly compels courts to collect a “tax.” This Court properly

observed that “to prevail on a facial challenge, a party must establish that the

statute always operates unconstitutionally in all possible circumstances.” See

Salinas, 426 S.W.3d at 326; see also Rosseau, 396 W.W.3d at 557. This Court also

correctly explained that the analysis of a statute’s constitutionality “must begin

with the presumption that the statute is valid and that the Legislature did not act

arbitrarily or unreasonably in enacting it.” See id. Thus, appellant, as the individual

challenging the statute, has the burden to establish its unconstitutionality. In a

facial challenge to a statute’s constitutionality, courts consider the statute only as

it is written, rather than how it operates in practice. See Peraza, 2015 WL at *4; see

also State ex rel. Lykos v. Fine, 330 S.W.3d 904, 908 (Tex. Crim. App. 2011).

      Under Section 133.102 of the Local Government Code, every person

convicted of a felony is assessed a consolidated court cost of $133.00. See TEX. LOC.

GOV’T CODE ANN. § 133.102(a)(1) (West 2012). Section 133.102(c) states that the

money collected for the consolidated court costs be allocated as stated in

Subsection (e). TEX. LOC. GOV’T CODE ANN. § 133.102(c) (West 2012). Subsection

(e) requires the Comptroller of Public Accounts to deposit specified percentages

of money received from the consolidated court cost to the following funds and

accounts:
                                            8
             • Abused Children’s Counseling;

             • Crime Stoppers Assistance;

             • Breath Alcohol Testing;

             • Bill Blackwood Law Enforcement Management Institute;

             • Law Enforcement Officers Administrative and Continuing
               Education;

             • Comprehensive Rehabilitation;

             • Operator’s and Chauffeur’s License (now Law Enforcement and
               Custodial Officer Supplemental Retirement Fund1);

             • Criminal Justice Planning;

             • 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;

             • Compensation to Victims of Crime Fund;

             • Emergency Radio Infrastructure Account;

             • Judicial and Court Personnel Training Fund;

             • 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




1
    Change took effect September 1, 2013.
                                            9
         • Fair Defense Account.

TEX. LOC. GOV’T CODE ANN. § 133.102(e) (West 2012).

      Under subsection (e) of Section 133.102, every single fund or account can be

labeled as a “legitimate criminal justice purpose” “relate[d] to the administration

of our criminal justice system.” See Peraza, 2015 WL at *7. By appellant focusing on

where the funds “might actually go” is irrelevant. This Court is to “consider only

how the statute is written, not how it operates in practice.” See Salinas, 2015 WL at

*4.

      Because the $133 consolidated court cost assessed under Section 133.102 of

the Local Government Code was to reimburse the State for prosecuting appellant

on a felony offense and conviction, and because Section 103.102(e) outlines the

allocation of monies to certain “legitimate criminal justice purposes” all “related to

the administration of our criminal justice system,” Section 133.102 is not

unconstitutional and the trial court did not err in denying appellant’s motions for

new trial and in arrest of judgment.

      Appellant’s conviction and court cost of $304.00 should be affirmed.

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




                                         10
                                    PRAYER

      The State respectfully requests this Court find Section 133.102 of the Local

Government Code constitutional and (re)affirm appellant’s conviction and

$304.00 in court costs.




                                                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




                                       11
        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 2501 words in the document; and (b)

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

the following attorneys via TexFile at the following email on August 31, 2015:



      Jani Maselli
      Assistant Public Defender
      Email: jani.maselli@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




                                         12
