                                                                                 ACCEPTED
                                                                             12-17-00209-CR
                                                                TWELFTH COURT OF APPEALS
                                                                              TYLER, TEXAS
                                                                         11/27/2017 11:05 AM
                                                                                   Pam Estes
                                                                                      CLERK

                      12-17-00209-CR

                                                            FILED IN
                                                    12th COURT OF APPEALS
         IN THE TWELFTH COURT OF              APPEALS TYLER, TEXAS
                   TYLER, TEXAS                     11/27/2017 11:05:23 AM
                                                           PAM ESTES
                                                             Clerk

                RUBEN HERNANDEZ, JR.

                               Appellant,

                              v.

                  THE STATE OF TEXAS

                                   Appellee



On Appeal from the 114th District Court of Smith County, Texas
                Trial Cause No. 114-0427-15




         ORAL ARGUMENT NOT REQUESTED


                          Austin Reeve Jackson
                          JLawAppeals@gmail.com
                          Texas Bar No. 24046139
                          PO Box 8355
                          Tyler, TX 75711
                          Telephone: (903) 595-6070
                          Facsimile: (866) 387-0152
                   IDENTITY OF PARTIES AND COUNSEL


Attorney for Appellant

Appellate Counsel:
Austin Reeve Jackson
112 East Line, Suite 310
Tyler, TX 75702

Trial Counsel:
Curt Ellis
120 S. Broadway
Tyler, TX 75702


Attorney for the State on Appeal

Michael J. West
Assistant District Attorney, Smith County
4th Floor, Courthouse
100 North Broadway
Tyler, TX 75702




                                            ii
                                          TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................................. ii
TABLE OF CONTENTS ............................................................................................... iii
INDEX OF AUTHORITIES.......................................................................................... iv
STATEMENT OF THE CASE ....................................................................................... 2
ISSUES PRESENTED ................................................................................................... 2
STATEMENT OF FACTS ............................................................................................. 3
SUMMARY OF THE ARGUMENT ............................................................................. 4
ARGUMENT .................................................................................................................. 4

    I.      THE TRIAL COURT ERRED IN IMPOSING COURT COSTS
            FOR DNA TESTING WHEN SUCH COSTS ARE NOT
            AUTHORIZED FOR A DEFENDANT CONVICTED OF THE
            INSTANT OFFENSE ..................................................................................... 4

    II.     THE TRIAL COURT COURT ERRED IN IMPOSING COURT
            COSTS FOR FEES THAT HAVE BEEN HELD TO BE
            UNCONSTITUTIONAL. ............................................................................... 6

CONCLUSION AND PRAYER .................................................................................... 7
CERTIFICATE OF SERVICE ....................................................................................... 7
CERTIFICATE OF COMPLIANCE .............................................................................. 8




                                                            iii
                                      INDEX OF AUTHORITIES


TEXAS COURT OF CRIMINAL APPEALS:

Armstrong v. State,
 340 S.W.3d 759 (Tex.Crim.App. 2011)......................................................... 4

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

Johnson v. State,
  423 S.W.3d 389 (Tex.Crim.App. 2014)......................................................... 4, 5

Peraza v. State,
 467 S.W.3d 508 (Tex.Crim.App. 2015)......................................................... 6

Salinas v. State,
 523 S.W.3d 103 (Tex.Crim.App. 2017)......................................................... 6

Thompson v. State,
 108 S.W.3d 287 (Tex.Crim.App. 2003)......................................................... 5, 7


TEXAS COURTS OF APPEAL:

Cobb v. State,
 95 S.W.3d 664 (Tex.App.—Houston [1st Dist.] 2002) ................................. 5, 7


STATUTES:

TEX. CODE CRIM. PROC. art. 102.020 ................................................................ 4, 5

TEX. GOV’T CODE § 411.1471 .......................................................................... 5

TEX. PEN. CODE § 30.02 .................................................................................... 5



                                                          iv
                                12-17-00209-CR


                    IN THE TWELFTH COURT OF APPEALS
                              TYLER, TEXAS


                         RUBEN HERNANDEZ, JR.

                                         Appellant,

                                       v.

                           THE STATE OF TEXAS

                                            Appellee



        On Appeal from the 114th District Court of Smith County, Texas
                        Trial Cause No. 114-0427-15




TO THE HONORABLE JUSTICES OF THE COURT:

      Comes Now, Austin Reeve Jackson, attorney for Ruben Hernandez, and files

this brief pursuant to the Texas Rules of Appellate Procedure, and would show the

Court as follows:
                          STATEMENT OF THE CASE

      Ruben Hernandez appeals his conviction and sentence for the felony offense

of burglary of a habitation rendered against him in June of this year. (I CR 122).

After being indicted for this offense in April of 2015, Mr. Hernandez elected to enter

a plea of “not guilty” and proceed to trial by jury. (I CR 1, 122). After a brief trial,

Mr. Hernandez was convicted and, having requested that the trial judge impose pun-

ishment, was shortly thereafter sentenced to serve a term of ten years’ confinement.

(I CR 122). Sentence was pronounced on 12 June 2017 and notice of appeal then

timely filed. (I CR 122, 126).

                               ISSUES PRESENTED

      I.     THE TRIAL COURT ERRED IN IMPOSING COURT
             COSTS FOR DNA TESTING WHEN SUCH COSTS ARE
             NOT AUTHORIZED FOR A DEFENDANT CONVICTED
             OF THE INSTANT OFFENSE.

      II.    THE TRIAL COURT ERRED IN IMPOSING COURT
             COSTS FOR FEES THAT HAVE BEEN HELD TO BE UN-
             CONSTITUTIONAL.




                                           2	
                            STATEMENT OF FACTS

      In March of 2015, Luane Chancellor returned to her Smith County home after

a vacation and found a large dog in her yard that would not allow her to approach

her house. (XIV RR 15-16). Ms. Chancellor called her brother, who lived nearby,

for assistance and after he was able to frighten the dog away the two approached her

front door. (XIV RR 16-17). When doing so, the noticed that Ms. Chancellor’s

dryer was running and as they attempted to open the door they heard a male voice

say, “Don’t come in.” (XIV RR 16-17).

      Ms. Chancellor then called 911 and law enforcement arrived to find Appel-

lant, Mr. Ruben Hernandez, inside the home. (XIV RR 18-19). After entering the

home, it was observed that Mr. Hernandez had eaten some of Ms. Chancellor’s food,

hung his clothes in her closet, cleaned clothes in her washer and dryer, and otherwise

taken up residence. (XIV RR 19-25). Importantly, the doorjamb around her front

door had been broken and the door appeared to have been forced open. (XIV RR

19, 23, 57, 73). Ms. Chancellor told the officers on scene and later testified at trial

that she neither new Mr. Hernandez nor had she given him permission to be in her

home. (XIV RR 20).

      As a result of this situation, Mr. Hernandez was arrested and subsequently

indicted for the felony offense of burglary of a habitation; specifically entering Ms.

Chancellor’s home with the intent to commit theft. (I CR 1). To this charge, he



                                          3	
entered a plea of “not guilty” and proceeded to trial by jury. (I CR 122). Ultimately,

Mr. Hernandez was convicted and sentenced to serve a term of ten years’ confine-

ment. Sentence was pronounced on 12 June 2017 and notice of appeal then timely

filed. (I CR 122, 126).

                          SUMMARY OF ARGUMENT

        While applicable statutes permit, and indeed require, that costs of court be

assessed against a defendant, only those costs that are specifically authorized and

may be imposed. In the instant case, among those costs taxed to Mr. Hernandez was

a $250 DNA testing fee that is only applicable in certain, statutorily enumerated

offenses of which this case is not one. Similarly, a portion of the consolidated court

costs fee that was imposed has been held to be unconstitutional. For this reason, the

Court should modify the judgment and remove those costs.

                                   ARGUMENT

   I.      THE TRIAL COURT ERRED IN IMPOSING COURT COSTS
           FOR DNA TESTING WHEN SUCH COSTS ARE NOT AU-
           THORIZED FOR A DEFENDANT CONVICTED OF THE IN-
           STANT OFFENSE.

        By law, a sentencing court shall impose the legislatively mandated, statutory

costs at the time a defendant is convicted. Armstrong v. State, 340 S.W.3d 759

(Tex.Crim.App. 2011); TEX. GOV’T CODE § 102.020. However, only statutorily au-

thorized costs may be assessed against aa defendant. Johnson v. State, 423 S.W.3d




                                          4	
385, 389 (Tex.Crim.App. 2014). When reviewing a challenged cost on appeal a

court looks at the record to determine if there is a basis for the cost. Id. at 390.

      Among those costs properly imposed against a defendant, in certain limited

cases, is a $250 fee for DNA testing. TEX. CODE CRIM. PROC. art. 102.020. The

cases to which this fee applies are listed in Section 411.1471(a)(1) of the Govern-

ment Code which includes the offense of burglary of a habitation but only when the

defendant has been indicted and convicted of burglary under Section 30.02(d) of the

Penal Code. TEX. GOV’T CODE § 411.1471(a)(1)(F). Section 30.02(d) of the Penal

Code describes those burglaries of a habitation where the defendant “entered the

habitation with intent to commit a felony…” TEX. PEN. CODE § 30.02(d).

      In the instant case Mr. Hernandez was neither indicted nor convicted under

Section 30.02. (I CR 1, 122). Rather, he was charged with entering a habitation

with the intent to commit a theft. (I CR 1); TEX. PEN. CODE § 30.02(a)(1), (c)(2).

As such, the trial court abused its discretion when it improperly assessed as a cost of

court $250 for DNA testing and ordering that the same be withheld from the inmate

trust account of Mr. Hernandez. (I CR 122, 124, 127). Consequently, it is prayed

that the Court reform the judgment and withholding order to reflect a reduction of

costs by $250. (Id.); see Thompson v. State, 108 S.W.3d 287, 290 (Tex.Crim.App.

2003); Cobb v. State, 95 S.W.3d 664, 668 (Tex.App.—Houston [1st Dist.] 2002, no




                                           5	
pet.) (both noting the authority of appellate courts to reform judgments when the

appellate court has before it all the information necessary to do so).

   II.      THE TRIAL COURT ERRED IN IMPOSING COURT
            COSTS FOR FEES THAT HAVE BEEN HELD TO BE UN-
            CONSTITUTIONAL.

         Whether a statute is facially constitutional is a question of law that an appel-

late court will review de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex.Crim.App.

2013). A statute is presumed to be constitutional and the burden rests on the chal-

lenging party to show that a particular statute is unconstitutional. Peraza v. State,

467 S.W.3d 508, 514 (Tex.Crim.App. 2015). “Every reasonable presumption” will

be made by a reviewing court in favor of finding that a statute is constitutional. Id.

Courts will “consider the statute only as written, rather than how it [may operate] in

practice.” Id.

         Among other fees, the bill of costs in the instant case includes a fee of $133.00

for consolidated court costs fees. (I CR 127). Recently though, the Court of Crim-

inal Appeals held $13 worth of the consolidated court fee to be constitutionally im-

permissible. Salinas v. State, 523 S.W.3d 103 (Tex.Crim.App. 2017). Specifically,

the Court determined that the “abused children’s counseling” and “comprehensive

rehabilitation” fees were invalid and should be severed from the imposed costs of

court. Salinas at 113. This results in a reduction of the consolidated court fee from

$133.00 to $119.93. Id. at 113 (Hervey, J., concurring).



                                             6	
      Consequently, it is prayed that the Court reform the judgment and withholding

order to reflect that reduced amount.    (I CR 122, 124, 127); see Thompson, 108

S.W.3d at 290; Cobb, 95 S.W.3d at 668.

                         CONCLUSION AND PRAYER

      WHEREFORE, PREMISES CONSIDERED, counsel prays, because a $250

DNA testing fee was improperly ordered, and because the amount of court costs

ordered exceeds that which is constitutionally permissible, that the Court modify the

underlying judgment and the withholding order to reflect the correct amount.

                                               Respectfully submitted,

                                               /s/ Austin Reeve Jackson
                                               Texas Bar No. 24046139
                                               PO Box 8355
                                               Tyler, TX 75711
                                               Telephone: (903) 595-6070
                                               Facsimile: (866) 387-0152




                         CERTIFICATE OF SERVICE

      I certify that a true and correct copy of this Brief was delivered to counsel for

the State by efile mail on 27 November 2017.

                                               /s/ Austin Reeve Jackson




                                          7	
                     CERTIFICATE OF COMPLIANCE

      I certify that this document complies with the requirements of Rule 9.4 and

consists of 1,369 words.

                                            /s/ Austin Reeve Jackson




                                       8	
