                                                                                   P0100-15
              PD-0100&0101-15                                COURT OF CRIMINAL APPEALS
                                                                              AUSTIN, TEXAS
                                                           Transmitted 1/30/2015 8:24:28 AM
                                                              Accepted 2/4/2015 9:16:04 AM
                                                                               ABEL ACOSTA
                            PD ________                                                CLERK


               IN THE COURT OF CRIMINAL APPEALS

                              OF TEXAS
     _______________________________________________

                           OSMIN PERAZA,
                             Appellant,

                                  v.

                   THE STATE OF TEXAS,
                         Appellee.
     _______________________________________________

On Petition for Discretionary Review from the First Court of Appeals in
              Nos. 01-12-00690-CR and 01-12-00691-CR
   affirming the conviction in cause numbers 1305483 and 1305439,
        From the 184th District Court of Harris County, Texas
     _______________________________________________

       APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
     _______________________________________________

 ORAL ARGUMENT NOT REQUESTED                  ALEXANDER BUNIN
                                              Chief Public Defender
                                              Harris County, Texas

                                              JANI MASELLI WOOD
                                              Assistant Public Defender
                                              Harris County, Texas
                                              TBN. 00791195
                                              1201 Franklin Street, 13th Floor
     February 4, 2015                         Houston, Texas 77002
                                              Phone: (713) 368-0016
                                              Fax: (713) 368-9278

                                              Counsel for Appellant
                                              January 25, 2015
              IDENTITY OF PARTIES AND COUNSEL

APPELLANT:                       Osmin Peraza
                                 TDCJ-ID# 01798603
                                 Garza West
                                 4250 Highway 202
                                 Beeville, TX 78102

TRIAL PROSECUTOR:                Ms. Sarah Bruchmiller
                                 Assistant District Attorney
                                 Harris County, Texas
                                 1201 Franklin, 6th Floor
                                 Houston, Texas 77002

APPELLATE PROSECUTOR:            Jessica Akins
                                 Assistant District Attorney
                                 Harris County, Texas
                                 1201 Franklin St., 13th Floor
                                 Houston, TX 77002

DEFENSE COUNSEL AT TRIAL:        Ms. Emily Detoto
                                 3000 Smith, Suite 4
                                 Houston, Texas 77006

PRESIDING JUDGE:                 Hon. Jan Krocker
                                 184th District Court, Harris County
                                 1201 Franklin, 17th floor
                                 Houston, Texas 77002

DEFENSE COUNSEL ON APPEAL:       Jani Maselli
                                 Assistant Public Defender
                                 Harris County, Texas
                                 1201 Franklin, 13th Floor
                                 Houston, Texas 77002

                             i
                                         TABLE OF CONTENTS
                                                                                                                   PAGE

Identity of Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                    1

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Ground for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Reason for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Argument

          The Court of Appeals erred in determining there was no evidence Mr.
          Peraza’s guilty pleas were coerced. The trial attorney stated on the
          record that Mr. Peraza was pressured into making his plea. Did the
          Court of Appeals err in holding that the trial court did not abuse its
          discretion in refusing to allow Mr. Peraza to withdraw his guilty plea?.. . . . 6
                 Court of Appeals’ Opinion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
                 Involuntary plea.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
                 Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
                 The record is silent as to the plea colloquy. . . . . . . . . . . . . . . . . . . . . . . . . . 10

Prayer for Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

                                                              ii
Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Attached




                                                           iii
                                         INDEX OF AUTHORITIES
                                                                                                           PAGE
Cases:

Boykin v. Alabama,
       395 U.S. 238 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Brady v. United States,
       397 U.S. 742 (1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

Carranza v. State,
      980 S.W.2d 653 (Tex. Crim. App. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Ex Parte Lewis,
      587 S.W.2d 697 (Tex. Crim. App. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Fisher v. State,
        104 S.W.3d 923 (Tex. App.-Houston [14th Dist.] 2003, no pet.). . . . . . . . 10

Houston v. State,
      201 S.W.3d 212 (Tex. App.-Houston [14th Dist.] 2006, no pet.) . . . . . . . . 11

Jackson v. State,
       590 S.W.2d 514 (Tex. Crim. App. [Panel Op.] 1979). . . . . . . . . . . . . . . . . . 10

Martinez v. State,
      981 S.W.2d 195 (Tex. Crim. App.1998) . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

McWherter v. State,
     571 S.W.2d 312 (Tex. Crim. App.1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Peraza v. State,
      No. 01-12-00690-CR, No. 01-12-00691-CR, 2014 WL 7476214
      (Tex. App. – Houston [1st Dist.] December 30, 2014, no pet. history).p.assim


                                                         iv
North Carolina v. Alford,
      400 U.S. 25 (1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8


Statutes and Rules

TEX. PENAL CODE § 22.021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

TEX. R. APP. P. 66.3(C).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Other References

Bryan A. Garner, Garner’s Dictionary of Legal Usage 10 (Oxford Univ. Press, 3d Ed.
2011)(1987)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

W. Wendell Hall, Hall’s Standard of Review in Texas, 42 St. Mary’s L.J. 3, 16 (2010). 9




                                                             v
                     STATEMENT REGARDING ORAL ARGUMENT

        Oral argument is not requested.

                               STATEMENT OF THE CASE

        This is an appeal from two separate cause numbers: 1305438 and 1305439.1

 Mr. Peraza pled guilty to two different felony offenses of aggravated sexual assault of

 a child. (C.R.1 at 59; C.R.2 at 61). See TEX. PENAL CODE § 22.021. The Court took

 the plea under advisement and a PSI hearing was held. (C.R.1 at 144; C.R.2 at 146).

 At the PSI hearing, Mr. Peraza sought to withdraw his guilty plea, but the court denied

 the request. (2 R.R. at 6-9). After the presentation of witnesses, the court sentenced

 Mr. Peraza to 25 years imprisonment on each case to run concurrently. (C.R.1 at 73;

 C.R.2 at 75; 2 R.R. at 39).

        Motions for new trial and motions in arrest of judgment were filed in both

 cases on August 13, 2012. (C.R.1 at 91, 116; C.R.2 at 94, 120). On August 16, 2012,

 the motions were presented and the court denied a hearing and denied the motions

 that same day. (C.R.1 at 113-15, 139-41; C.R.2 at 117-19, 143-45). Notice of appeal

 was timely filed. (C.R.1 at 78; C.R.2 at 80).




  1
      Cause Number 1305438 [01-12-00690-CR] will be designated as C.R.1 and Cause
Number 1305439 [01-12-00691-CR] will be designated as C.R.2. There is only one
reporter’s record for both cause numbers.
                                           -1-
                    STATEMENT OF THE PROCEDURAL HISTORY

      In a published opinion, the First Court of Appeals affirmed Mr. Peraza’s

conviction, but modified the judgment as to certain court costs. Peraza v. State, No.

01-12-00690-CR, No. 01-12-00691-CR, 2014 WL 7476214 (Tex. App. – Houston [1st

Dist.] December 30, 2014, no pet. history). There was a concurring and dissenting

opinion by Justice Brown concurring to the affirming of the conviction and dissenting

to the modification of the judgment. Id. No motion for rehearing was filed. This

petition is timely if filed on or before January 30, 2015.




                                          -2-
                               GROUND FOR REVIEW

      The Court of Appeals erred in determining there was no evidence Mr.
      Peraza’s guilty pleas were coerced. The trial attorney stated on the
      record that Mr. Peraza was pressured into making his plea. Did the
      Court of Appeals err in holding that the trial court did not abuse its
      discretion in refusing to allow Mr. Peraza to withdraw his guilty plea?

                               REASON FOR REVIEW

      The First Court of Appeals has decided an important question of state
      or federal law in a way that conflicts with the applicable decisions of the
      Court of Criminal Appeals or the Supreme Court of the United States.
      TEX. R. APP. P. 66.3(C).

              STATEMENT OF FACTS RELATIVE TO GROUND RAISED

      Mr. Peraza pled guilty to two different indictments - both alleging aggravated

sexual assault of a child under 14. (C.R.1 2, 59; C.R.2 at 2, 75). The docket sheets

reflect that on May 3, 2012:

      Defendant waived arraignment and entered a plea of GUILTY.
      Defendant, appearing to be sane, is admonished by the Court of the
      consequences of said plea. Penalty recommendation of the State is:
      WITHOUT AN AGREED RECOMMENDATION/PSI HEARING.
       The Court found sufficient evidence of guilt but made no finding of
      guilt. RESET FOR SENTENCING.

(C.R.1 at 144; C.R.2 at 146). At the start of the PSI hearing, the following colloquy

occurred:




                                          -3-
MS. DETOTO: On behalf of the defendant, Mr. Osmin Peraza, I am
requesting that his guilty plea to the offenses be withdrawn. According
to the Presentence report and my conversations with Mr. Peraza, Mr.
Peraza was coerced into confessing to this offense. He, according to the
offense report, did a polygraph; and they informed him that he failed.
Immediately thereafter, coincidentally, he confesses to the offenses.
  It's my opinion that that -- the initial confession was coerced; and but
for that act of coercion on the part of law enforcement, Mr. Peraza
never would have pled guilty to the offense on the trial date. If you
looked at the date that his guilty pleas took place, it happened to be
while the jury was on the way on the trial date, which leads further --
which is further evidence that his guilty pleas were coerced. And as
further evidence that –

THE COURT: I'm sorry. You're saying that having the jury on the way
is a form of coercion?

MS. DETOTO: I am, Your Honor. And that's why Mr. Peraza felt
pressured to make that decision.
   Thirdly, Your Honor, the PSI, in his version of the offense, he denies
the offense; and so, that would be evidence that his guilty pleas were not
freely and voluntarily made. So, I'm asking you for permission to
withdraw his guilty pleas in both offenses.
   I note -- I have a feeling that somewhere down the road, if we do not
do that today, a Motion for New Trial would be filed, alleging the very
same things that I'm alleging. We might have to have a hearing on that
Motion for New Trial, and I would just hate for us to have to do this all
over again, for the victim's sake.
    So, I'm respectfully asking that the guilty pleas be withdrawn. I have
had cases that have lasted a lot longer than Mr. Peraza's case. We just
tried one in here, and I don't think that -- my request to withdraw the
guilty pleas are not made for the purposes of delay, but so justice can be
actually served in this case.


                                   -4-
          He didn't get his day in court. I know hindsight is 20/20, but he has
       asked me to ask you to give him permission to withdraw the guilty pleas.

       THE COURT: Thank you very much. Does the State wish to be heard
       on this?

       MS. BRUCHMILLER: Your Honor, he did get his day in court. The
       case was originally filed on May 7, 2011; and Mr. Peraza pled guilty to
       both cases on May 3, 2012. There was ample opportunity. If he wanted
       to go to trial, he could have pled not guilty; and we could have had a
       trial. Both sides were ready on the day of trial. He did meet with an
       officer when this case was being investigated back in May of 2012; and
       during the time with that officer, he confessed to committing this
       offense on two different occasions. I think he had counsel who had
       been with the case, I believe, from the beginning, for several months at
       least, who was working with us regarding our plans as far as whether or
       not we were going to go to trial. There were several cases set that day;
       other defendants, as well. So, I don't believe there was any coercion on
       the part of the Court; and certainly I never talked to the defendant. But
       I feel like his plea was voluntarily made, and you asked him that during
       the -- sorry, sorry -- during the time of his plea.

       THE COURT: Thank you. I will note that I would not have taken his
       plea, Mr. Peraza's plea, if I had not believed at the time he was entering
       it freely and voluntarily. Your motion is denied.

(2 R.R. at 6-9).

       During this exchange, the prosecutor averred that Mr. Peraza had confessed

to Officer Montoya. (2 R.R. at 10). The PSI report, which the court had a copy of,




                                          -5-
unequivocally stated Mr. Peraza denied the offense and stated the complainant was

lying. (3 R.R. SX-1 PSI page 2, 5).

      During the PSI hearing, the father of the complainant testified he was very

upset that Mr. Peraza had sexually assaulted his daughter. (2 R.R. at 12-20). Mr.

Peraza’s wife testified she did not believer her husband committed the assaults and

was a good man and good father. (2 R.R. at 26-29).

      The trial court sentenced Mr. Peraza to 25 years imprisonment on each case,

to run concurrently. (2 R.R. at 39).




                                        -6-
                                      ARGUMENT

        The Court of Appeals erred in determining there was no evidence Mr.
        Peraza’s guilty pleas were coerced. The trial attorney stated on the
        record that Mr. Peraza was pressured into making his plea. Did the
        Court of Appeals err in holding that the trial court did not abuse its
        discretion in refusing to allow Mr. Peraza to withdraw his guilty plea?

                                Court of Appeals’ Opinion

        The Court of Appeals held that despite there being no record of the guilty plea

to support Mr. Peraza’s case, there was sufficient evidence the plea was voluntarily

made:

        The record, however, contains no evidence that anyone coerced
        appellant into pleading guilty. Appellant voluntarily submitted to a
        polygraph test, and neither his failure of the polygraph test, nor the
        immediacy of a jury trial, constituted a threat, misrepresentation, or
        improper promise. Thus, appellant has not overcome the presumption
        that he knowingly and voluntarily entered his pleas.

Peraza, 2014 WL 7476214, at *3. The Court of Appeals determined the statements on

the record by Mr. Peraza’s trial attorney insufficient to support the contention that the

pleas were involuntary. This is classically unfair when the absence of evidence to

support the plea is disregarded. See Peraza, 2014 WL 7476214, at *2 (explaining

“[h]ere, the absence of a recorded plea colloquy, alone, does not overcome the

presumption that appellant was properly admonished and understood the

consequences and nature of his pleas.).


                                           -7-
                                    Involuntary plea

      In Brady v. United States, 397 U.S. 742 (1970), "[t]he standard as to the

voluntariness of guilty pleas" was set forth as follows:

      [A] plea of guilty entered by one fully aware of the direct consequences,
      including the actual value of any commitments made to him by the
      court, prosecutor, or his own counsel, must stand unless induced by
      threats, ... misrepresentations (including unfulfilled or unfulfillable
      promises), or perhaps by promises that are by their nature improper as
      having no proper relationship to the prosecution's business (e.g.,
      bribery).

See also, Ex Parte Lewis, 587 S.W.2d 697, 700 (Tex. Crim. App. 1979) (requirement of

due course of law extends to guilty pleas).

      The likelihood of loss of liberty based on a plea of guilty “demands the utmost

solicitude of which courts are capable in canvassing the matter with the accused to

make sure he has a full understanding of what the plea connotes and of its

consequence.” Boykin v. Alabama, 395 U.S. 238, 243-44 (1969). It is axiomatic that

a guilty plea must be voluntary and intelligent to satisfy due process requirements.

Boykin, 395 U.S. at 242-43. As the Court opined:

      a plea of guilty is more than an admission of conduct; it is a conviction.
      Ignorance, incomprehension, ... might be a perfect cover-up of
      unconstitutionality.

Boykin, 395 U.S. at 242-43, 89 S.Ct. at 1712. The test to determine the validity of a

guilty or no contest plea is “whether the plea represents a voluntary and intelligent



                                          -8-
choice among the alternative courses of action open to the defendant.” North Carolina

v. Alford, 400 U.S. 25, 31 (1970). Due process requires that a defendant be both

advised of and understand the direct consequences of a plea. Brady, 397 U.S. at 755.

The Supreme Court, citing Judge Tuttle of the Fifth Circuit, stated the standard as to

the voluntariness of guilty pleas:

      [A] plea of guilty entered by one fully aware of the direct consequences,
      including the actual value of any commitments made to him by the
      court, prosecutor, or his own counsel, must stand unless induced by ...
      misrepresentation ... 242 F.2d at page 115. (emphasis supplied).

Brady, 397 U.S. at 755. (footnotes omitted). In Carranza v. State, 980 S.W.2d 653, 656

(Tex. Crim. App. 1998), this Court reasoned:

      ... if a defendant’s guilty plea is not equally knowing and voluntary, it has
      been obtained in violation of due process and is therefore void.
      Moreover, because a guilty plea is an admission of all the elements of a
      formal criminal charge, it cannot be truly voluntary unless the defendant
      possesses an understanding of the law in relation to the facts. (emphasis
      supplied).

Carranza, 980 S.W.2d at 656.

      The record is silent as to what Mr. Peraza was told or explain on the day of his

plea. The record is not silent regarding his desire to withdraw his guilty plea before

he was found guilty and sentenced. Constitutional protections such as this, while

reviewed under an abuse of discretion, are far too valuable to disregard.



                                           -9-
       Mr. Peraza wanted to withdraw his guilty plea. (2 R.R. at 6-9). The trial court’s

summary dismissal of the request was an abuse of discretion.

                                     Standard of Review

       Where a defendant decides to withdraw his guilty plea after the trial judge takes

the case under advisement or pronounces judgment, the withdrawal of such plea is

within the sound discretion of the trial court. McWherter v. State, 571 S.W.2d 312 (Tex.

Crim. App.1978).

       The definition of an abuse of discretion encompasses myriads of cases and law

reviews, but has been explained as:

       “The test for abuse of discretion is not whether, in the opinion of the
       reviewing court, the facts present an appropriate case for the trial court's
       action.” Rather, a trial court abuses its discretion if its decision is
       “arbitrary, unreasonable, and without reference to [any] guiding [rules
       and] principles” or is “‘so arbitrary and unreasonable as to amount to a
       clear and prejudicial error of law.”’ (footnotes omitted).

W. Wendell Hall, Hall’s Standard of Review in Texas, 42 St. Mary’s L.J. 3, 16 (2010). In

Garner’s Dictionary of Legal Usage, it is defined as:

       the phrase denoting a lenient standard of reviewing a lower court’s
       judgment, signifies “no single level of deference or scrutiny.” The
       “variability of the phrase is not hopeless. It just means that
       generalizations about the standard may not be helpful. Abuse in this
       context is not pejorative; the word here is wholly unrelated to the
       meaning of the term when used in common parlance.”



                                            -10-
Bryan A. Garner, Garner’s Dictionary of Legal Usage 10 (Oxford Univ. Press, 3d Ed.

2011)(1987). The trial court’s refusal to even consider the withdrawal based upon an

unrecorded plea colloquy that occurred months earlier was unreasonable. The court’s

explanation that “I will note that I would not have taken his plea, Mr. Peraza's plea,

if I had not believed at the time he was entering it freely and voluntarily” is stout, but

unreasonable. (2 R.R. at 9).

       The court failed to consider Mr. Peraza’s assertion of innocence. The court

failed to consider any reason for the withdrawal, merely relying upon a belief that the

court never takes an involuntary plea. That reasoning is “without reference to [any]

guiding [rules and] principles.”

                         The record is silent as to the plea colloquy.

       The passing of a case for a PSI report is considered “[taking] the case under

advisement.” Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. [Panel Op.] 1979).

       A judge is free to make any finding based on the evidence regardless of the

plea; withdrawal of a guilty plea is not required even when evidence in a PSI raises an

issue of a defendant's innocence. Fisher v. State, 104 S.W.3d 923, 924 (Tex.

App.-Houston [14th Dist.] 2003, no pet.). Typically, proper admonishments by a trial

court establish prima facie proof that a guilty plea was entered knowingly and




                                             -11-
voluntarily. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App.1998); Houston v.

State, 201 S.W.3d 212, 217 (Tex. App.-Houston [14th Dist.] 2006, no pet.).

      In the case sub judice, the plea was not taken by a court reporter. There is no

evidence to support the plea colloquy was correct. What is present in the record is an

attorney requesting that her client be able to withdraw his plea. The attorney made

an appropriate argument that Mr. Peraza felt coerced into pleading guilty. The PSI

(despite the State’s assertions of a confession) establish that Mr. Peraza repeatedly

denied the offense.

      In this case, the burden has shifted to Mr. Peraza to show he pleaded guilty

without understanding the consequences of his plea and, consequently, suffered harm.

Houston, 201 S.W.3d at 217. The PSI hearing supports the proposition that Mr. Peraza

wished to withdraw his plea. And the voluntariness of a defendant’s plea should

never be so summarily dismissed with the statement by the court that the plea would

not have been taken had it not been “freely and voluntarily” entered. (2 R.R. at 9).




                                         -12-
                          PRAYER FOR RELIEF

For the reasons states above, Mr. Peraza prays that this Court grant his petition.

                                   Respectfully submitted,

                                   Jani Maselli Wood
                                   _______________________________
                                   JANI J. MASELLI WOOD
                                   Assistant Public Defender
                                   Harris County, Texas
                                   Jani.Maselli@pdo.hctx.net
                                   TBN. 00791195
                                   1201 Franklin Street, 13th Floor
                                   Houston, Texas 77002
                                   Phone: (713) 368-0016
                                   Fax: (713) 368-9278

                                   Attorney for Appellant
                                   Osmin Peraza




                                   -13-
                        CERTIFICATE OF SERVICE

      Pursuant to Tex. R. App. Proc. 9.5, this certifies that on January 26, 2015, a

copy of the foregoing was emailed to Lisa McMinn, State Prosecuting Attorney, and

the Harris County District Attorney’s Office through texfile.com at the following

address:


Jessica Akins
Assistant District Attorney
1201 Franklin Street, 6th Floor
Houston, TX 77002
akins_jessica@dao.hctx.net

Lisa McMinn
Lisa.McMinn@SPA.texas.gov

                                             Jani Maselli Wood
                                       _________________________________
                                       JANI J. MASELLI WOOD




                                       -14-
                        CERTIFICATE OF COMPLIANCE

       Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this

petition complies with the type-volume limitations of TEX. R. APP. PROC. 9.4(I)(2)(D).

1.     Exclusive of the portions exempted by TEX. R. APP. PROC. 9.4 (I)(1), this

petition contains 3393 words printed in a proportionally spaced typeface.

2.     This petition is printed in a proportionally spaced, serif typeface using

Garamond 14 point font in text and Garamond 14 point font in footnotes produced

by Corel WordPerfect software.

3.     Undersigned counsel understands that a material misrepresentation in

completing this certificate, or circumvention of the type-volume limits in Tex. R. App.

Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against

the person who signed it.


                                                Jani Maselli Wood
                                          ____________________________
                                          JANI J. MASELLI WOOD




                                           -15-
    Appendix A

Opinion Peraza v. State
Peraza v. State, --- S.W.3d ---- (2014)




                                                                      and unsupported “Sheriff's Fee” and an unconstitutional
                  2014 WL 7476214                                     “DNA Record Fee,” the trial court erred in not permitting him
    Only the Westlaw citation is currently available.                 to withdraw his guilty pleas, and it erred in denying him a
                                                                      hearing on his motions for new trial and in arrest of judgment.
NOTICE: THIS OPINION HAS NOT BEEN RELEASED
  FOR PUBLICATION IN THE PERMANENT LAW
 REPORTS. UNTIL RELEASED, IT IS SUBJECT TO
         REVISION OR WITHDRAWAL.                                      We modify the trial court's judgments and affirm as modified.

                          OPINION

                Court of Appeals of Texas,                                                    Background
                   Houston (1st Dist.
                                                                      A Harris County Grand Jury issued a true bill of indictment,
                                                                      accusing appellant of committing two separate offenses of
             Osmin Peraza, Appellant                                  aggravated sexual assault of a child less than fourteen years
                          v.                                          of age. After his arrest, appellant failed a polygraph test and
            The State of Texas, Appellee                              then admitted to a police officer that he had committed the
   NO. 01–12–00690–CR, NO. 01–12–00691–CR |
                                                                      offenses. He subsequently pleaded guilty to committing the
         Opinion issued December 30, 2014
                                                                      offenses. In his plea papers, appellant admitted that he had
                                                                      intentionally and knowingly caused both the mouth of the
                                                                      complainant, a person younger than fourteen years of age, to
On Appeal from the 184th District Court, Harris County,
                                                                      contact his sexual organ and the sexual organ of the
Texas, Trial Court Case Nos. 1305438 and 1305439
                                                                      complainant to contact his sexual organ. In each case,
                                                                      appellant also signed written admonishments, representing
Attorneys and Law Firms
                                                                      that he was mentally competent, understood the nature of the
                                                                      charge against him and the consequence of his plea, and
Jani Maselli, Assistant Public Defender, Houston, TX, for
                                                                      freely and voluntarily pleaded guilty to the offense.
appellant.
                                                                      Appellant's attorney signed the plea papers, affirming that she
                                                                      believed that appellant had executed his pleas knowingly,
Devon Anderson, District Attorney, Jessica Akins, Assistant
                                                                      voluntarily, and after a full discussion of the consequences of
District Attorney, Houston, TX, for State.
                                                                      his pleas. The trial court found sufficient evidence of
Panel consists of Justices Jennings, Sharp, and Brown.
                                                                      appellant's guilt in both cases and that appellant had entered
                                                                      his guilty pleas freely, knowingly, and voluntarily. And it
                                                                      admonished appellant of his legal rights, accepted his guilty
                          OPINION
                                                                      pleas, and ordered a presentence investigation in each case.

                                                                      At the sentencing hearing, appellant moved to withdraw his
Terry Jennings, Justice
                                                                      guilty pleas, arguing that they had been coerced. After finding
                                                                      that appellant had pleaded guilty freely and voluntarily, the
*1 Appellant, Osmin Peraza, without an agreed punishment
                                                                      trial court denied his motion.
recommendation from the State, pleaded guilty to two
separate offenses of aggravated sexual assault of a child less
                                                                      In its judgment of conviction in each case, the trial court
than fourteen years of age.1 The trial court assessed his
                                                                      ordered appellant to pay $634 in court costs, including, as
punishment at confinement for twenty-five years for each
                                                                      part of the “Sheriff's Fee,” a $50 charge for “serving capias”2
offense, with the sentences to run concurrently. In four issues,
                                                                      and a $5 charge for an arrest without a warrant or capias.3 The
appellant contends that each judgment contains an erroneous
                                                                      trial court also included within the $634 of court costs a $250


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                                                                   -17-
Peraza v. State, --- S.W.3d ---- (2014)




“DNA Record Fee.”4 Appellant then filed his motions for new             presumption that a defendant voluntarily and knowingly
trial and in arrest of judgment, which the trial court denied           pleaded guilty arises when the trial court finds that the
without a hearing.                                                      defendant was properly admonished. See Martinez v. State,
                                                                        981 S.W.2d 195, 197 (Tex.Crim.App.1998); see also
                Withdrawal of Guilty Pleas                              Tex.Code Crim. Proc. Ann. art. 26.13(b) (Vernon Supp.2014)
                                                                        (guilty pleas may not be accepted unless mentally competent
*2 In his first issue, appellant argues that the trial court erred      defendant enters plea freely and voluntarily). When the record
in denying his motion to withdraw his guilty pleas because he           presents a prima facie showing that the plea was entered
did not enter the pleas voluntarily.                                    voluntarily and knowingly, “the burden shifts to the defendant
                                                                        to show that he entered the plea without understanding the
A defendant may withdraw his guilty plea at any time before             consequences.” Arreola v. State, 207 S.W.3d 387, 391
judgment is pronounced or the trial court takes the plea under          (Tex.App.–Houston [1st Dist.] 2006, no pet.).
advisement. Jackson v. State, 590 S.W.2d 514, 515
(Tex.Crim.App.1979); State v. Ellis, 976 S.W.2d 789, 792                Here, the absence of a recorded plea colloquy, alone, does not
(Tex.App.–Houston [1st Dist.] 1998, no pet.). Once a plea has           overcome the presumption that appellant was properly
been taken under advisement or guilt has been adjudicated,              admonished and understood the consequences and nature of
however, a request to withdraw the plea is untimely, and the            his pleas. See Dusenberry v. State, 915 S.W.2d 947, 949–52
withdrawal of the plea is within the sound discretion of the            (Tex.App.–Houston [1st Dist.] 1996, pet. ref'd) (concluding
trial court. Jackson, 590 S.W.2d at 515; Ellis, 976 S.W.2d at           guilty plea voluntary because defendant received written
792. After the trial court has admonished the defendant and             admonishments of legal rights). Although the plea colloquy
received the plea and evidence, the passage of the case for a           was not recorded, appellant received written admonishments
presentence investigation constitutes taking the case under             of his legal rights, affirmed that he was mentally competent
advisement. See Jackson, 590 S.W.2d at 514–15; Wissinger                and understood the nature of the charges against him and the
v. State, 702 S.W.2d 261, 262–63 (Tex.App.–Houston [1st                 consequences of his pleas, and agreed that he freely and
Dist.] 1985, pet. ref d). Because appellant did not request that        voluntarily pleaded guilty in each case. Further, the plea
his guilty pleas be withdrawn until after the trial court had           papers show that appellant's trial counsel and the trial court
taken his cases under advisement, we review the trial court's           both verified that appellant entered his guilty pleas freely,
denial of his motion to withdraw his pleas for an abuse of              knowingly, and voluntarily, after having fully discussed his
discretion.                                                             pleas and their consequences with counsel. On this record,
                                                                        there is no evidence that appellant was not properly
A trial court abuses its discretion when it acts arbitrarily,           admonished or failed to understand the consequence or nature
unreasonably, or without reference to any guiding rules or              of his pleas.
principles. Lyles v. State, 850 S.W.2d 497, 502
(Tex.Crim.App.1993); Montgomery v. State, 810 S.W.2d                    *3 In regard to appellant's assertion that his guilty pleas were
372, 380 (Tex.Crim.App.1990). To show that the trial court              coerced, we note that “a plea is involuntary when it is
abused its discretion when it refused to allow appellant to             ‘induced by threats, misrepresentations, or improper promises'
withdraw his guilty pleas, he must show that “the trial court's         ” by the prosecutor, judge, or law enforcement officials. Rios
rulings lie outside the zone of reasonable disagreement.”               v. State, 377 S.W.3d 131, 136 (Tex.App.–Houston [1st Dist.]
Jagaroo v. State, 180 S.W.3d 793, 802 (Tex.App.–Houston                 2012, pet. ref'd) (quoting Kniatt v. State, 206 S.W.3d 657,
[14th Dist.] 2005, pet. ref'd).                                         664 (Tex.Crim.App.2006)). Moreover, we presume the
                                                                        regularity of the judgments and proceedings, and appellant
Appellant first argues that there is no evidence that he                has the burden of overcoming this presumption. Dusenberry,
voluntarily entered his pleas because there is no record of the         915 S.W.2d at 949.
trial court's oral discussion with him of his legal rights. We
consider the entire record in determining whether a plea was            Appellant presented no evidence that his guilty pleas were
entered voluntarily. Fimberg v. State, 922 S.W.2d 205, 207              actually coerced. At his sentencing hearing, appellant's trial
(Tex.App.–Houston [1st Dist.] 1996, pet. ref'd). A prima facie          counsel suggested that appellant was coerced into pleading

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Peraza v. State, --- S.W.3d ---- (2014)




guilty because the jury was “on the way” and appellant had             court. Tex. Code Crim. Proc. Ann. art. 103.006 (Vernon
failed a polygraph test immediately before admitting to a              2006).
police officer that he had committed the sexual-assault
offenses. The record, however, contains no evidence that               Court costs do not constitute part of the guilt or sentence of a
anyone coerced appellant into pleading guilty. Appellant               criminal defendant—“they are ‘a nonpunitive recoupment of
voluntarily submitted to a polygraph test, and neither his             the costs of judicial resources expended in connection with
failure of the polygraph test, nor the immediacy of a jury trial,      the trial of a case.’ ” Johnson v. State, 423 S.W.3d 385, 390
constituted a threat, misrepresentation, or improper promise.          (Tex.Crim.App.2014) (quoting Armstrong v. State, 340
Thus, appellant has not overcome the presumption that he               S.W.3d 759, 767 (Tex.Crim.App.2011)). Therefore, we
knowingly and voluntarily entered his pleas.                           review the assessment of court costs to determine whether
                                                                       there is a basis for the cost; we do not undertake an
When appellant requested to withdraw his guilty pleas, the             evidentiary-sufficiency review. Id.
trial court had taken his cases under advisement and reset
them for a punishment hearing. Because the trial court had
already admonished appellant of his legal rights and he had            *4 Here, the trial court clerk's bills of costs each include a
already voluntarily pleaded guilty, his request to withdraw his        $50 charge for “serving capias” as part of the “Sheriff's Fee”
pleas was untimely, and the trial court had discretion to accept       assessed against appellant. See Tex. Code Crim. Proc. Ann.
or deny his motion. See Jackson, 590 S.W.2d at 515.                    art. 102.011(a)(2) (Vernon Supp.2014) (“A defendant
                                                                       convicted of a felony or a misdemeanor shall pay ... $50 for
Accordingly, we hold that the trial court did not err in               executing or processing an issued arrest warrant, capias, or
denying appellant's motion to withdraw his guilty pleas.               capias pro fine....”). They also include a $5 charge for an
                                                                       arrest without a warrant/capias. See id. art. 102.011(a)(1)
We overrule appellant's first issue.                                   (authorizing $5 charge for arrest without warrant). The State
                                                                       agrees that the records do not support the $50 charge for
                                                                       “serving capias.” And the records contain no basis to
                                                                       conclude that capiases were issued for appellant's arrest.
                   Court Costs for Arrest
                                                                       The proper remedy for such an unsupported fee is for the
In his second issue, appellant argues that the trial court's           appellate court to modify the judgment, not to grant a new
judgments are invalid because they each contain an erroneous           trial as appellant has requested. See Tex. R. App. P. 43.2(b);
and unsupported “Sheriff's Fee.” Appellant asserts that, “[a]t         French v. State, 830 S.W.2d 607, 609 (Tex.Crim.App.1992)
the very least, the $50.00 Sheriff's Fee [for serving a capias]        (agreeing “appellate court has authority to reform a [trial
should be removed” from the $634 in court costs assessed               court] judgment to ... make the record speak the truth when
against him in each judgment.                                          the matter has been called to its attention by any source”); see
                                                                       also Nolan v. State, 39 S.W.3d 697, 698 (Tex.App.–Houston
A criminal defendant must pay certain statutorily mandated             [1st Dist.] 2001, no pet.) (“An appellate court has the power
costs and fees, which vary depending on the type of offense,           to correct and reform a trial court judgment ‘to make the
the underlying facts, and the procedural history of the case.          record speak the truth when it has the necessary data and
See Tex. Gov't Code Ann. § 102.021 (Vernon Supp.2014)                  information to do so ....’ ” (quoting Asberry v. State, 813
(listing court costs upon conviction); Tex. Loc. Gov't Code            S.W.2d 526, 529 (Tex.App.–Dallas 1991, pet. ref'd))).
Ann.. § 133.102 (Vernon Supp.2014) (same). The district
court clerk must keep a record of each fee or cost charged for         Because there is no basis in the record to support the $50
a service rendered in a criminal action or proceeding. Tex.            charge for “serving capias” assessed against appellant as part
Code Crim. Proc. Ann. art. 103.009(a)(1) (Vernon 2006). If             of the “Sheriff's Fee” in both of appellant's cases, we modify
a criminal action is appealed, an officer of the court must            each judgment to delete the $50 charge from the court costs.
certify and sign a bill of costs and send it to the appellate
                                                                       We sustain appellant's second issue.

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Peraza v. State, --- S.W.3d ---- (2014)




                                                                       102.020(a)(1). Thirty-five percent of the revenue received
         Constitutionality of “DNA Record Fee”                         from this “DNA Record Fee” is dedicated to the state
                                                                       highway fund, while sixty-five percent of the revenue is
In his third issue, appellant argues that the trial court's            dedicated to the general revenue fund of the criminal justice
judgments are invalid because they each assess an                      planning account. Id. art. 102.020(h).
unconstitutional $250 “DNA Record Fee.” See Tex. Code
Crim. Proc. Ann. art. 102.020(a)(1) (Vernon Supp.2014)                 Appellant argues that the “DNA Record Fee” is an
(authorizing collection of $250 from persons convicted of              impressible tax collected by the judiciary, rather than a
offenses listed in Texas Government Code section                       legitimate court cost, because revenue from this fee is
411.1471(a)(1)). Appellant asserts that the fee required by            dedicated to the state highway fund and criminal justice
article 102.020 is facially unconstitutional under the                 planning account and, thus, used for services that are neither
separation of powers clause of the Texas Constitution. See             necessary nor incidental to the trial of a criminal case. In
Tex. Const. art. II, § 1.                                              support of his argument, appellant principally relies on Ex
                                                                       Parte Carson, 143 Tex.Crim. 498, 159 S.W.2d 126 (1942).
Whether a statute is facially constitutional is a question of law
that we review de novo. Ex Parte Lo, 424 S.W.3d 10, 14                 In Carson, the Texas Court of Criminal Appeals considered
(Tex.Crim.App.2013); Ma loney v. State, 294 S.W.3d 613,                whether it was constitutionally permissible to impose a $1 fee
626 (Tex.App.–Houston [1st Dist.] 2009, pet. ref'd). When              as a court cost in all cases filed in counties with more than
reviewing a constitutional challenge, we “presume that the             eight district courts or more than three county courts at law.
statute is valid and that the legislature was neither                  159 S.W.2d at 127. The revenue collected from the $1 fee
unreasonable nor arbitrary in enacting it.” Curry v. State, 186        was directed to the “County Law Library Fund” and
S.W.3d 39, 42 (Tex.App.–Houston [1st Dist.] 2005, no pet.);            “available to be used for certain costs and expenses in
see also State v. Rosseau, 396 S.W.3d 550, 557                         acquiring, maintaining and operating a law library available
(Tex.Crim.App.2013). If the statute can be construed in two            to the judges of the courts and to the attorneys of litigants.”
different ways, one of which sustains its validity, we apply the       Id. The court held that the fee constituted an unconstitutional
interpretation that sustains its validity. Maloney, 294 S.W.3d         tax, not a legitimate court cost, because it was “neither
at 625.                                                                necessary nor incidental to the trial of a criminal case.” Id. at
                                                                       127, 130. The court cautioned that to hold otherwise,
The party challenging the statute bears the burden of
establishing the statute's unconstitutionality. Rosseau, 396                 would lead into fields of expenditures which
S.W.3d at 557; Curry, 186 S.W.3d at 42. “A facial challenge                  may as well include the cost of the court
to a statute is the most difficult challenge to mount                        houses, the automobiles which officers use to
successfully because the challenger must establish that no set               apprehend criminals and even the roads upon
of circumstances exists under which the statute will be                      which they ride. If something so remote as a
valid.”Santikos v. State, 836 S.W.2d 631, 633                                law library may be properly charged to the
(Tex.Crim.App.1992); see also Rosseau, 396 S.W.3d at 557.                    litigant on the theory that it better prepares the
We “must uphold the challenged statute if it can be                          courts and the attorneys for the performance of
reasonably construed in a manner consistent with the                         their duties, it occurs to us that we might as
legislative intent and is not repugnant to the Constitution.”                logically tax an item of cost for the education
Curry, 186 S.W.3d at 42.                                                     of such attorneys and judges and even the
                                                                             endowments of the schools which they attend.

*5 Article 102.020(a)(1), titled “Costs Related to DNA                 Id. at 127.
Testing,” provides that a defendant convicted of certain
offenses, including aggravated sexual assault of a child less
than fourteen years of age, “shall pay as a cost of court: $250        Appellant, likening the “DNA Record Fee” to the
[upon] conviction....” Tex. Code Crim. Proc. Ann. art.                 law library fee in Carson, first asserts that the

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Peraza v. State, --- S.W.3d ---- (2014)




portion of the “DNA Record Fee” dedicated to the            T. Hasler, Dangerous Distractions: The Problematic
state highway fund “is used ... [to] provide services       Use of Wireless Communication Devices While
that are neither necessary nor incidental to the trial      Driving, 12 Tex. Tech. Admin. L.J. 155, 168 (2010)
of a criminal case.”                                        (“TxDOT's purpose is to facilitate effective
                                                            movement throughout the state by providing safe,
By law, “[m]oney that is required to be used for            efficient transportation systems.”); Kyle R. Baum,
public roadways by the Texas Constitution or federal        Comment, Rollin' on Down the Rail: Can Texas
law and that is deposited in the state treasury to the      Lead the Nation in Developing Efficient High–Speed
credit of the state highway fund, ... may be used           Rail this Time Around?, 45 Tex. Tech. L.Rev.
only: (1) to improve the state highway system; (2) to       Online 1, 2 (2013) (TxDOT's “core mission is to
mitigate adverse environmental effects that result          ‘provide safe and efficient movement of people and
directly from construction or maintenance of a state        goods, enhance economic viability and improve the
highway by the department; or (3) by the                    quality of life for people that travel in the state of
Department of Public Safety to police the state             Texas by maintaining existing roadways and
highway system and to administer state laws relating        collaborating with private and local entities to plan,
to traffic and safety on public roads.” Tex. Transp.        design, build and maintain expanded transportation
Code Ann. § 222.001(a) (Vernon 2011) (emphasis              infrastructure’ ”).
added). Section 222.002 supplements this instruction
and provides that “[m]oney in the state highway fund        TxDOT is divided into twenty-two divisions, ranging
that is not required to be spent for public roadways        from aviation to maritime to public transportation
by the Texas Constitution or federal law may be             and rail, which are tasked with handling the
used for any function performed by the department.”         responsibilities of the department. See Tex. Transp.
Id. § 222.002 (Vernon 2011) (emphasis added).               Code Ann. § 201.202(a) (Vernon Supp.2014) (“The
“[T]he department” referenced in section 222.002 is         commission shall organize the department into
the Texas Department of Transportation                      divisions to accomplish the department's functions ...
(“TxDOT”). Id. § 201.001(a)(2) (Vernon                      including divisions for: (1) aviation; (2) highways
Supp.2014); see also State v. Montgomery Cnty.,             and roads; and (3) public transportation.”); Inside
338 S.W.3d 49, 56 (Tex.App.–Beaumont 2011, pet.             TxDOT: Divisions, Tex. Dep't Transp., http://
denied) (noting “ ‘[d]epartment’ means the                  www.txdot.gov/inside-txdot/division.html (last
Department of Transportation”).                             visited Dec. 16, 2014) (“From rail crossings to right
                                                            of way, traffic cameras to travel maps, and bridge
*6 Here, the “DNA Record Fee” revenue dedicated             inspections to bid opportunities, TxDOT's divisions
to the state highway fund does not constitute money         handle a diverse range of services for the agency.”).
that is required, by either the Texas Constitution or
federal law, to be used for public roadways. See Tex.       TxDOT is responsible for developing a statewide
Code Crim. Proc. Ann. art. 102.020(a)(1); Tex.              transportation plan for addressing all modes of
Transp. Code Ann. § 222.001(a). Therefore,                  transportation, including highways and turnpikes,
pursuant to section 222.002, such money may be              aviation, mass transportation, railroads, high-speed
used for any function of TxDOT. See Tex. Transp.            railroads, and water traffic. See Tex. Transp. Code
Code Ann. §§ 201,001, 222.002.                              Ann. § 201.601(a) (Vernon Supp.2014); Robbins v.
                                                            Limestone Cnty., 114 Tex. 345, 268 S.W. 915, 920
The stated mission of TxDOT is to “[w]ork with              (1925) (agency created to “formulate and execute
others to provide safe and reliable transportation          plans and policies for the location, construction and
solutions for Texas.”5 Inside TxDOT: Mission, Goals         maintenance of a comprehensive system of state
and Values, Tex. Dep't Transp.,                             highways and public roads”); see also Tex. Transp.
http://www.txdot.gov/inside-txdot/contact-us/missi          Code Ann. §§ 201.6011–622 (Vernon 2011 &
on.html (last visited Dec. 16, 2014); see also Glenn        Supp.2014) (listing plans and projects of TxDOT);

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Peraza v. State, --- S.W.3d ---- (2014)




Brian K. Carroll, The Road Goes on Forever and the            shall be deposited in the state treasury to the credit
Claims Process Never Ends: An Approach for                    of the state highway fund, and money deposited to
Success in Handling Texas Department of                       the state highway fund under this section and under
Transportation Construction Claims, 13 Tex. Tech.             Articles 42.12 and 102.020(h), Code of Criminal
Admin. L.J. 233, 234 (2012) (“The projects range              Procedure, may be used only to defray the cost of
from small landscaping and guardrail projects to              administering [chapter 411, subchapter G] and
major interchanges.... TxDOT also supervises the              Section 411.0205.” Tex. Gov't Code Ann. §
construction of buildings for rest areas, area                411.145(c) (Vernon 2012); see also id. § 411.0205
engineer's offices, district offices, visitor's centers,      (Vernon Supp.2014) (crime laboratory accreditation
and other special purpose buildings....”).                    process). Because “[s]ubchapter G governs the
                                                              collection and management of DNA samples,
                                                              including [a]ppellant's, by [the Texas Department of
*7 The court in Carson, which constitutes binding             Public Safety (“DPS”) ]” and “[s]ection 411.0205
precedent on this Court,6 held that fees which are            regulates the accreditation of forensic crime
“neither necessary nor incidental to the trial of a           laboratories by DPS,” our dissenting colleague
criminal case” are not legitimate courts costs that           concludes that “the portion of the DNA Record Fee
may be assessed against a defendant. 159 S.W.2d at            credited to the state highway fund is used to defray
127, 130. As discussed above, the responsibilities of         the costs associated with collecting, storing, and
TxDOT, which under the Code of Criminal                       testing DNA samples” and, thus, “paying for DNA
Procedure is entitled to use thirty-five percent of the       sampling and crime-lab accreditation is a valid,
revenue collected by the “DNA Record Fee,” do not             constitutional use of the DNA Record Fee under
relate to the trial of a criminal case. Instead, the          Carson.”
responsibilities of TxDOT are far more remote from
a criminal trial than the county law libraries which
were to be used by the judges and attorneys for trial         In reaching his conclusion, however, our dissenting
preparation in Carson. Thus, it cannot be reasonably          colleague fails to consider the entire breadth of
concluded that the portion of the revenue collected           subchapter G. For instance, the “DNA Database”
through the “DNA Record Fee” and dedicated to the             provided for in chapter 411, subchapter G is used for
state highway fund constitutes a proper court cost to         a wide variety of purposes, including “assisting in
be assessed against appellant or any other criminal           the recovery or identification of human remains from
defendant.                                                    a disaster or for humanitarian purposes,” “assisting
                                                              in the identification of living or deceased missing
Accordingly, we hold that the portions of articles            persons,” “establishing a population statistics
102.020(a)(1) and 102.020(h) requiring the                    database,” “assisting in identification research,
collection of the “DNA Record Fee” from appellant             forensic validation studies, or forensic protocol
to be dedicated the state highway fund constitute an          development,” and “retesting to validate or update
unconstitutional tax. See Carson, 159 S.W.2d at 127,          the original analysis or assisting in database or DNA
130. But see O'Bannon v. State, 435 S.W.3d 378,               laboratory quality control.” Id. § 411.143(c) (Vernon
380–82 (Tex.App.–Houston [14th Dist.] 2014, no                2012). And the database contains DNA records from
pet.).                                                        a whole host of individuals, such as “an unidentified
                                                              missing person or unidentified skeletal remains or
We note that our dissenting colleague would not               body parts,” “a close biological relative of a person
hold that the portion of the “DNA Record Fee”                 who has been reported missing,” and “a person at
revenue dedicated to the state highway fund is an             risk of becoming lost, such as a child or a person
unconstitutional tax. In doing so, he relies on Texas         declared ... mentally incapacitated.” Id. § 411.142(g)
Government Code section 411.145(c), which                     (Vernon 2012). Notably, none of the above statutory
provides that “[a] fee collected under this section           purposes or the individual records in the DNA

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                                                           -22-
Peraza v. State, --- S.W.3d ---- (2014)




Database relate to appellant's criminal trial, despite       used by the CJD for services that are necessary or
the fact that thirty-five percent of the revenue             incidental to the trial of a criminal case.
collected via the “DNA Record Fee” may be utilized
by DPS to “defray the cost of administering” chapter         The Texas Government Code reveals that the CJD
411, subchapter G.7 See id. § 411.145(c).                    was established to:

*8 The Texas Court of Criminal Appeals has clearly               (1) advise and assist the governor in developing
favored a strict definition of what constitutes a                policies, plans, programs, and proposed
legitimate court cost that may be assessed against a             legislation for improving the coordination,
criminal defendant. See Carson, 159 S.W.2d at 127;               administration, and effectiveness of the criminal
see also Salinas v. State, 426 S.W.3d 318, 329–30                justice system;
(Tex.App.–Houston [14th Dist.] 2014, no pet.)
(Jamison, J., dissenting) (explaining Carson                     (2) administer the criminal justice planning fund;
constitutes binding precedent and “the Carson Court
clearly favored a strict definition of permissible               (3) prepare a state comprehensive criminal justice
‘court costs' in a criminal case”). And the revenue              plan, to update the plan annually based on an
collected via the “DNA Record Fee” to be used by                 analysis of the state's criminal justice problems
DPS for anything covered by chapter 411,                         and needs, and to encourage identical or
subchapter G, or for crime laboratory accreditation              substantially similar local and regional
under Government Code section 411.0205, is not                   comprehensive criminal justice planning efforts;
closely enough related to appellant's criminal trial to
be considered constitutional.                                    (4) establish goals, priorities, and standards for
                                                                 programs and projects to improve the
Appellant, again relying on Carson, next asserts that            administration of justice and the efficiency of law
the portion of the “DNA Record Fee” dedicated to                 enforcement, the judicial system, prosecution,
the general revenue fund of the criminal justice                 criminal defense, and adult and juvenile
planning account also constitutes an unconstitutional            corrections and rehabilitation;
tax.
                                                                 (5) award grants to state agencies, units of local
                                                                 government, school districts, and private,
The criminal justice planning account is                         nonprofit corporations from the criminal justice
administered by the Criminal Justice Division                    planning fund for programs and projects on
(“CJD”) of the Governor's Office. See Tex. Gov't                 consideration of the goals, priorities, and
Code Ann. § 772.006(a)(2) (Vernon 2012).                         standards recommended by the Criminal Justice
Appellant asserts that the CJD's “mission is to create           Policy Council;
and support programs that protect people from
crime, reduce the number of crimes committed, and
to promote accountability, efficiency, and                       (6) apply for, obtain, and allocate for the purposes
effectiveness within the criminal justice system.” He            of this section any federal or other funds which
notes that it “focuses on the enhancement of                     may be made available for programs and projects
Texas'[s] capacity to prevent crime, provide service             that address the goals, priorities, and standards
and treatment options, enforce laws, train staff and             established in local and regional comprehensive
volunteers, and the restoration of crime victims to              criminal justice planning efforts or assist those
full physical, emotional and mental health.”                     efforts;
Appellant argues that because “the courts [are] never
mentioned” as part of the CJD's mission or focus, the            (7) administer the funds provided by this section
revenue collected via the “DNA Record Fee” is not                in such a manner as to ensure that grants received

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                                                          -23-
Peraza v. State, --- S.W.3d ---- (2014)




  under this section do not supplant state or local         Administered by the Office of the Governor, Office
  funds;                                                    o f                  G o v e r n o r ,
                                                            http://governor.state.tx.us/financial-services/grants/
  (8) monitor and evaluate programs and projects            (last visited Dec. 16, 2014) (grants from criminal
  funded under this section, cooperate with and             justice planning fund “support a wide range of
  render technical assistance to state agencies and         projects designed to reduce crime and improve the
  local governments seeking to reduce crime or              criminal [and] juvenile justice systems”); Helpful
  enhance the performance and operation of the              Questions and Answers for Managing Grants,
  criminal justice system, and collect from any state       Office of Governor, Criminal Justice Div., B–12
  or local government entity information, data,             ( F e b . 2 0 1 4 ) , h t t p : / / g o v e r n o r . st a t e . t x . u s /
  statistics, or other material necessary to carry out      files/cjd/CJD_Guide_to_Grants_v7.pdf (same).
  the purposes of this section;

  *9 (9) submit a biennial report to the legislature        Numerous entities are eligible to apply for grants
  reporting the division's activities during the            from the criminal justice planning fund, including
  preceding biennium including the comprehensive            “[s]tate agencies, units of local government,
  state criminal justice plans and other studies,           independent school districts, nonprofit corporations,
  evaluations, crime data analyses, reports, or             Native American tribes, COGs, universities,
  proposed legislation that the governor determines         colleges, hospital districts, juvenile boards, regional
  appropriate or the legislature requests; and              education service centers, community supervision
                                                            and corrections departments, crime control and
  (10) perform other duties as necessary to carry out       prevention districts, and faith-based organizations.”
  the duties listed in this subsection and adopt rules      CJD Funding Sources, supra, at 1; see also Tex.
  and procedures as necessary.                              Gov't Code Ann. § 772.006(a)(5) (CJD awards
                                                            grants from criminal justice planning fund “to state
                                                            agencies, units of local government, school districts,
Id.                                                         and private, nonprofit corporations”); Press Release,
                                                            Office of Governor, Gov. Perry Awards $195,000
                                                            From State Criminal Justice Planning Funds (Jan.
In regard to the CJD's administration of the criminal       2 8 ,         2 0 0 8 ) ,             h t t p : / /
justice planning account, the legislature determines        governor.state.tx.us/news/press-release/5133/ (grant
and appropriates the necessary amount of money              recipients from criminal justice planning fund
from the criminal justice planning fund to the CJD.         “include local units of government, independent
Tex.Code Crim. Proc. Ann. art. 102.056(a) (Vernon           school districts, non-profit corporations, hospitals,
Supp.2014). The CJD then uses this money to                 universities, colleges, community supervision and
“[s]upport a wide range of projects designed to             corrections departments, law enforcement agencies
reduce crime and improve the criminal and juvenile          and councils of governments”).
justice systems.”8 CJD Funding Sources, Office of
Go ver nor , C r i mi n al J ustice Div., 1 ,               *10 Moreover, the CJD has awarded money from the
http://governor.state.tx.us/                                fund to a variety of recipients, such as the Alamo
files/cjd/CJD_Funding_Sources.pdf (last visited             Area Council of Governments for Regional Police
Dec. 16, 2014); see also Tex. Code Crim. Proc. Ann.         Training Academy, the Bastrop County Women's
art. 102.056(a) (money from criminal justice                Shelter for SAINT: Sexual Assault Integrated
planning fund used by CJD “for state and local              Nursing Team, Fort Bend County for the “Saved by
criminal justice projects,” with not less than twenty       the Bell” Delinquency Reduction Program, the Katy
percent of such money going to juvenile justice             Christian Ministries for Counseling Services for
programs); Financial Services: Grants over $25,000          Victims of Domestic Violence, and The Family

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Peraza v. State, --- S.W.3d ---- (2014)




Place for S.T.A.R.T. (Students Tackling Abusive             criminal and juvenile justice systems.” See CJD
Relationships Together). See, e.g., Press Release,          Funding Sources, supra, at 1. The recipients of
Office of Governor Tex., Gov. Perry Awards $8               money from the criminal justice planning fund are
Million in Grants to Improve Criminal Justice               vastly diverse and range from state agencies to
Systems (Sept. 10, 2008), http://                           schools to hospitals and faith-based organizations.
governor.state.tx.us/news/press-release/11114/              Notably, the money from the criminal justice
(listing seventy-nine recipients that received more         planning fund is not required to be directed to the
than $8 million in grants from criminal justice             courts or to services necessarily or incidentally
planning fund); Press Release, Office of the                related to criminal trials. And often times such
Governor of Tex., Gov. Perry Awards $195,000                revenue is given to programs that, as the court in
From State Criminal Justice Planning Fund, supra            Carson specifically noted, could not possibly relate
(stating more than $195,000 in grants from criminal         to legitimate court costs. See 159 S.W.2d at 127
justice planning fund awarded to Wood County for            (costs for training and education not legitimate court
Wood County Rural Prosecutor Project and                    costs that may be assessed against criminal
BeyondMissing Inc. for Texas Amber Alert                    defendants). Accordingly, we cannot conclude that
Network); Press Release, Office of Governor,                the criminal justice planning account, which is
Governor Rick Perry Announces Statewide Grant to            funded by the “DNA Record Fee,” passes
Reduce School Dropouts (Nov. 7, 2001), http://              constitutional muster. See Salinas, 426 S.W.3d at
governor.state.tx.us/ news/press-release/4229/              330–31 (Jamison, J., dissenting) (concluding court
(announcing $168,146 criminal justice planning fund         costs assessed pursuant to Texas Local Government
grant to Behavioral Health Institute of Waco to assist      Code section 133.102, which directs approximately
with “efforts to reduce school failure, dropout rates,      thirteen percent of its revenue to the criminal justice
and juvenile crime”); see also Helpful Questions and        planning fund, unconstitutional).
Answers for Managing Grants, supra, at B–12
(listing activities eligible for grants from criminal
justice planning fund, such as job training,                The State argues that appellant has not shown that
professional therapy and counseling, school based           the “DNA Record Fee” is unconstitutional because
delinquency prevention, substance abuse, and peer           it “is a one-time fee of $250” and “is certainly
support groups).                                            applicable to appellant, as he was court-ordered to
                                                            provide a DNA specimen in both sexual assault
With this background in mind, we turn to the                cases.” The State asserts that the “DNA Record Fee”
propriety of the portion of the revenue collected via       was ordered “to reimburse the State for expenses
the “DNA Record Fee” dedicated to the criminal              incurred as a result of the felony prosecution [of
justice planning account and to be used by the CJD.         appellant], specifically costs spent to obtain DNA
As the Texas Court of Criminal Appeals explained            specimens in certain cases.” And “[s]ince this
in Carson, adopting a less than strict definition of        statutory assessment is reasonably related to the
what constitutes a legitimate court cost “would lead        costs of administering the criminal justice system,
into fields of expenditures which may as well include       appellant has failed to show how the statute
the cost of the court houses, the automobiles which         authorizing this court cost is unconstitutional.”
officers use to apprehend criminals and even the
roads upon which they ride.” 159 S.W.2d at 127.             DPS is required to collect a DNA specimen from
                                                            persons convicted of certain crimes, including
Here, sixty-five percent of the revenue received            aggravated sexual assault of a child less than
through the “DNA Record Fee” is dedicated by law            fourteen years of age, and maintain a database that
to the general revenue fund of the criminal justice         includes, among others, these DNA specimens. See
planning account in order to “[s]upport a wide range        Tex. Gov't Code Ann. § 411.142 (directing DPS to
of projects designed to reduce crime and improve the        maintain “computerized database that serves as the

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Peraza v. State, --- S.W.3d ---- (2014)




central depository in the state for DNA records”); id.        of none of which have any relation to the collection
§ 411.1471 (Vernon 2012) (requiring collection of             of a defendant's DNA specimen or a criminal trial.
DNA specimen from those convicted of certain                  See, e.g., Tex. Code Crim. Proc. Ann. art.
crimes). As asserted by the State, funds from the             102.056(a) (money from criminal justice planning
criminal justice planning account may be used by the          fund is used for “state and local criminal justice
CJD to reimburse DPS and other law enforcement                projects,” with not less than twenty percent of such
agencies for expenses incurred in performing duties           funds directed to juvenile justice programs); Tex.
required by Texas Government Code section                     Gov't Code Ann. § 772.006(a)(5) (CJD awards
411.1471, namely the taking of a DNA specimen                 grants from criminal justice planning fund “to state
from a defendant, preserving of the specimen, and             agencies, units of local government, school districts,
maintaining a collection of the specimen. See                 and private, nonprofit corporations”); Press Release,
Tex.Code Crim. Proc. Ann. art. 102.056(e); Tex.               Office of Governor, Gov. Perry Awards $8 Million
Gov't Code Ann. § 411.1471.                                   in Grants to Improve Criminal Justice Systems,
                                                              supra (listing seventy-nine recipients that received
*11 Notably though, reimbursement for expenses                more than $8 million in grants from criminal justice
related to the collection and maintenance of DNA              planning fund); Press Release, Office of Governor,
specimens is not automatic or guaranteed under                Gov. Perry Awards $195,000 from State Criminal
Texas Code of Criminal Procedure article                      Justice Planning Funds, supra (stating more than
102.056(e); the statute only provides that DPS will           $195,000 in grants from criminal justice planning
be reimbursed with funds from the criminal justice            fund awarded to Wood County for Wood County
planning account after it complies with certain               Rural Prosecutor Project and BeyondMissing Inc.
procedures. See Tex. Code Crim. Proc. Ann. art.               for Texas Amber Alert Network); Press Release,
102.056(e) (law enforcement agency, incurring                 Office of Governor, Governor Rick Perry
expenses in previous calendar quarter, must, on first         Announces Statewide Grant to Reduce School
day after end of calendar quarter, send certified             Dropouts, supra (announcing $168,146 criminal
statement of costs incurred to CJD). Thus, although           justice planning fund grant to Behavioral Health
appellant provided a DNA specimen to DPS in                   Institute of Waco to assist with “efforts to reduce
accordance with section 411.1471 in conjunction               school failure, dropout rates, and juvenile crime”).
with his cases, it cannot be assumed that DPS was             Thus, it cannot be reasonably concluded that the
automatically reimbursed by virtue of the “DNA                revenue dedicated to the criminal justice planning
Record Fee” for any expenses associated with the              account provides services that are necessary or
collection of his specimen.                                   incidental to the trial of a criminal defendant's case.
                                                              See Carson, 159 S.W.2d at 127, 130; see also
                                                              Salinas, 426 S.W.3d at 332 (Jamison, J., dissenting)
Further, we note that even if we presume that some            (“Although it appears some of the funds that go to
of the revenue collected pursuant to the “DNA                 the fair defense account may ultimately help provide
Record Fee” is actually used to reimburse DPS or              counsel for indigent criminal defendants, it does not
other law enforcement agencies for collecting DNA             appear that this is the sole use that can be made for
specimens from criminal defendants, preserving such           these funds.... It therefore cannot be said that either
specimens, and maintaining a record of such                   the training fund or the fair defense account are
collections, it is readily apparent that this is not the      necessary or incidental expenses in the trial of
only way in which the revenue is used. Sixty-five             appellant's criminal case.”).
percent of the revenue collected through the “DNA
Record Fee” is dedicated to the general revenue fund          Accordingly, we hold that the portions of article
of the criminal justice planning account. As outlined         102.020(a)(1) and article 102.020(h) requiring the
above, money in the criminal justice planning fund            collection of the “DNA Record Fee” from appellant
is given to a vast number of diverse entities, almost         to be dedicated to the general revenue fund of the

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Peraza v. State, --- S.W.3d ---- (2014)




criminal justice planning account constitute an
unconstitutional tax. See Carson, 159 S.W.2d at 127,
130. But see O'Bannon, 435 S.W.3d at 381.                    We sustain appellant's third issue.9

*12 We note that our sister court has recently                                   Conclusion
criticized the reasoning of the Texas Court of
Criminal Appeals opinion in Carson as “ ‘both                Having held that the “DNA Record Fee” assessed
abbreviated and bereft of citations to supporting            against appellant pursuant to article 102.020(a)(1)
authority.’ ” O'Bannon, 435 S.W.3d at 381 (quoting           and article 102.020(h) constitutes an unconstitutional
Salinas, 426 S.W.3d at 326). In “[a]ssuming                  tax, we modify each judgment to delete the $250
arguendo that Carson requires a statute imposing             charge from the assessed court costs. See Cates v.
court costs to be ‘necessary or incidental to the trial      State, 402 S.W.3d 250, 252 (Tex.Crim.App.2013)
of a criminal case,’ ” the Fourteenth Court of               (holding proper remedy when trial court erroneously
Appeals held that the defendant's facial                     includes amounts as court costs is to modify
constitutional challenge to article 102.020 failed           judgment to delete erroneous amounts); Sturdivant
because he did not “establish[ ] how the funds will          v. State, 445 S.W.3d 435, 443 (Tex.App.–Houston
be used once they are distributed to the state               [1st Dist.] 2014, pet. ref d) (holding trial court
highway fund and the criminal justice planning               erroneously included attorney pro tern fees as court
account.” Id. at 381–82. It asserted that the                costs and modifying judgment accordingly); see also
defendant merely “infer[ed]” that revenue collected          Tex. R. App. P. 43.2(b).
pursuant to article 102.020(a)(1) will “flow ‘directly
to the executive branch [to be] used for policy
purposes' ” or to the state highway fund, “not [to] be       Further, as noted above, having held that there is no
used for purposes necessary or incidental to DNA             basis in the record to support the charge for “serving
collection or testing.” Id. at 382.                          capias,” we also modify each judgment to delete the
                                                             $50 charge from the assessed court costs. See
We respectfully disagree with our sister court for the       French, 830 S.W.2d at 609 (agreeing “appellate
reasons outlined above. In short, we first note that         court has authority to reform a [trial court] judgment
the reasoning of the Texas Court of Criminal                 to ... make the record speak the truth when the matter
Appeals in Carson is sound and it constitutes                has been called to its attention by any source”);
binding precedent upon it and lower courts. See              Nolan, 39 S.W.3d at 698 (“An appellate court has
Reed v. Buck, 370 S.W.2d 867, 870–71 (Tex.1963)              the power to correct and reform a trial court
(explaining simply because certain cases had “not            judgment ‘to make the record speak the truth when
been cited in recent years,” such “ancient cases” do         it has the necessary data and information to do so
not “just fade[ ] away”; instead, “unless there is           ....’ ” (quoting Asberry, 813 S.W.2d at 529)); see
some good reason for overruling them, they should            also Tex. R. App. P. 43.2(b).
not be disregarded”); Purchase v. State, 84 S.W.3d
696, 701 (Tex.App.–Houston [1st Dist.] 2002, pet.
ref'd) (“[W]e are bound by the decisions of our              *13 We affirm the judgment of the trial court as
state's highest criminal court.”). Second, we note that      modified.
criminal defendants similarly situated to appellant
are not asking appellate courts to “infer” how the
revenue from the “DNA Record Fee” will be                    Harvey Brown, Justice, Concurring and Dissenting
directed. As discussed above, the revenue, by statute,
is dedicated by law for expenditures that are far
removed from actual “court costs.” A plain reading
of the pertinent statutes reveals this undeniable fact.

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Peraza v. State, --- S.W.3d ---- (2014)




I join with the Court's conclusions that the trial court
did not abuse its discretion in denying Appellant's           To prevail, the party asserting a facial challenge
motion to withdraw his guilty pleas and that the              “must establish that the statute always operates
judgment should be modified, striking the                     unconstitutionally in all possible circumstances.”
unsupported “Sheriff's Fee” assessed in both cases.           Rosseau, 396 S.W.3d at 557. When construing a
However, I disagree with the Court's conclusion that          statute, courts consider, among other factors, the
the “DNA Record Fee”1 is unconstitutional.                    object sought to be attained by the legislation, laws
                                                              on the same or similar subjects, and the
                                                              consequences of a particular construction. Tex. Gov't
                                                              Code Ann. § 311.023 (West 2013); see State v.
    Facial Challenge to the DNA Record Fee                    Neesley, 239 S.W.3d 780, 784
                                                              (Tex.Crim.App.2007); Nguyen v. State, 1 S.W.3d
Appellant argues that the statute authorizing                 694, 696–97 (Tex.Crim.App.1999); see also
collection of the fee is facially unconstitutional            Dowthitt v. State, 931 S.W.2d 244, 258
under the separation-of-powers clause of the Texas            (Tex.Crim.App.1996). If a statute can be reasonably
Constitution. Tex. Const. art. II, § 1. Under that            interpreted in a manner that does not offend the
provision, a statute authorizing a court to collect           constitution, a reviewing court must overrule a facial
costs “neither necessary nor incidental to the trial of       challenge to the statute's constitutionality. Curry,
a criminal case” is not valid.Ex parte Carson, 143            186 S.W.3d at 42.
Tex.Crim. 498, 159 S.W.2d 126, 127 (1942).
Appellant makes only a facial challenge, which
requires him to “establish that no set of                     B. Constitutionality of the DNA Record Fee
circumstances exists under which the statute will be          benefiting the criminal-justice planning account
valid.” Santikos v. State, 836 S.W.2d 631, 633
(Tex.Crim.App.1992); see also State v. Rosseau,               *14 Appellant argues that the DNA Record Fee
396 S.W.3d 550, 557 (Tex.Crim.App.2013). In my                unconstitutionally benefits the criminal-justice
view, Appellant has not shown that every application          planning account because the account is “too
of the statue violates the Carson standard. I would,          remote” to be considered a necessary or incidental
therefore, affirm the constitutionality of the fee.           cost of prosecuting a criminal case as required under
                                                              Carson, 159 S.W.2d at 127 (concluding that law
                                                              library fee is remote and unconstitutional). The
A. Reviewing a facial challenge                               Court agrees and cites several possible uses of
                                                              money from the criminal-justice planning account
When reviewing the constitutionality of a statute, “an        that are not related to the prosecution of a criminal
appellate court must presume that the statute is valid        case. This approach is contrary to the standard that
and that the legislature was neither unreasonable nor         applies to claims that a statute is facially
arbitrary in enacting it.” Curry v. State, 186 S.W.3d         unconstitutional because (1) it diminishes the
39, 42 (Tex.App.–Houston [1st Dist.] 2005, no pet.)           challenger's burden to demonstrate that all—not
(citing Ex parte Granviel, 561 S.W.2d 503, 511                some—applications of a statute are unconstitutional;
(Tex.Crim.App.1978)). A reviewing court must                  and (2) it runs afoul of precedent by favoring an
make every reasonable presumption in favor of the             unconstitutional reading over a constitutional
statute's constitutionality, unless the contrary is           reading when construing statutes. I would construe
clearly shown. Granviel, 561 S.W.2d at 511; see               the criminal-justice planning account in its statutory
Tex. Gov't Code Ann. § 311.021 (West 2013)                    context, situated among related statutes, and
(noting that courts presume “compliance” with                 conclude that Appellant has not demonstrated that all
Texas and United States Constitutions).                       applications of the statute are unconstitutional under
                                                              the Carson standard.


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Peraza v. State, --- S.W.3d ---- (2014)




                                                             tax. This conclusion does not account for the
                                                             remainder of subsection (e), which continues:
The Department of Public Safety (“DPS”) is
required to collect a DNA specimen from every                      The criminal justice division through a grant
person charged with certain categories of crimes,                  [of money from the criminal-justice planning
including the crime involved here—aggravated                       account] shall reimburse the law enforcement
sexual assault of a child under 14 years of age—and                agency for the costs not later than the 30th day
to create a database cataloging the DNA specimens.                 after the date the certified statement is
Tex. Gov't Code Ann. § 411.142 (West 2012)                         received. If the criminal justice division does
(directing DPS to maintain “computerized database                  not reimburse the law enforcement agency
that serves as the central depository in the state for             before the 90th day after the date the certified
DNA records” that is compatible with FBI's national                statement is received, the agency is not
DNA identification index system); id. § 411.1471                   required to perform duties imposed under
(West 2012) (requiring collection of DNA                           Section 411.1471 or Subchapter B–1, Chapter
specimens from people charged with or convicted of                 420, Government Code, as applicable, until
certain crimes, including aggravated sexual assault                the agency has been compensated for all costs
of child under 14 years of age); Tex. Penal Code                   for which the agency has submitted a certified
Ann. § 22.021 (West Supp.2014) (defining                           statement under this subsection.
aggravated sexual assault of child under 14 years of
age). The criminal-justice planning account allocates        Id. Thus, the Court's skepticism is unjustified given
funds toward the collection and management of this           the wording of the statute regarding reimbursement
statewide criminal DNA database. See Tex.Code                to fund the DNA project.
Crim. Proc. Ann. art. 102.056 (West Supp.2014).
Specifically, subsection (e) of article 102.056 directs
the Legislature to
                                                             The Court also insists that, even if DPS were
      determine and appropriate the necessary                reimbursed, the fee is nevertheless unconstitutional
      amount from the criminal justice planning              because the criminal-justice planning account funds
      account to the criminal justice division of the        other unrelated projects. Following this analysis, it
      governor's office for reimbursement in the             would be enough for a party bringing a facial
      form of grants to the Department of Public             constitutional challenge to show that some possible
      Safety of the State of Texas and other law             applications of a statute are unconstitutional to
      enforcement agencies for expenses incurred in          justify invalidating every application of that statute.
      performing duties imposed on those agencies            That is the wrong standard. See Santikos, 836
      under Section 411.1471 or Subchapter B–1,              S.W.2d at 633 (“[T]he challenger must establish that
      Chapter 420, Government Code, as applicable.           no set of circumstances exists under which the
                                                             statute will be valid.”). While money from the
Id.                                                          criminal-justice planning account apparently funds
                                                             other programs in addition to the DNA database,
                                                             Appellant presents no evidence that the DNA Record
After looking outside the record to press releases and       Fee revenue does anything more than reimburse the
web sites, the Court insists that “it cannot be              criminal-justice planning account for its
assumed that DPS was automatically reimbursed by             DNA-database expenditures. Appellant appears to
virtue of the ‘DNA Record Fee’ for any expenses              concede that reimbursement for these expenditures
associated with the collection of [Appellant's]              would not violate Carson. I agree.
sample” and therefore the fee is an unconstitutional



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Peraza v. State, --- S.W.3d ---- (2014)




*15 I would hold that collecting the DNA Record              roadways “may be used for any function performed
Fee to benefit the criminal-justice planning account         by” the Texas Department of Transportation
is constitutional because these funds may be                 (“TxDOT”). Tex. Transp. Code Ann. § 222.002
allocated to the statewide criminal DNA database.            (West 2011) (emphasis added). TxDOT does not
Because such an allocation would be constitutional,          manage DNA-sample collection, management, or
Appellant fails to meet his burden of showing that           testing. But TxDOT does not have exclusive access
every application of the statute would result in             to the state highway fund. Rather, the Transportation
constitutional injury. See Rosseau, 396 S.W.3d at            Code simply states a general rule that TxDOT “may”
557 (noting moving party has burden of                       access the fund. In contrast, the Government Code
demonstrating statute's unconstitutionality in “all its      provides a specific rule that money from the DNA
possible applications.”). Accordingly, I would               Record Fee in the state highway fund “may be used
conclude that Appellant has failed to demonstrate            only” by DPS to defray the cost of administering the
that the portion of the DNA Record Fee that benefits         DNA database. Tex. Gov't Code Ann. § 411.145
the criminal-justice planning account is an                  (emphasis added).
unconstitutional tax.

                                                             When two statutes concern the same issue, the two
C. Constitutionality of the DNA Record Fee                   should be read together as one law, and an appellate
benefiting the state highway fund                            court should attempt to harmonize any conflicting
                                                             provisions. Garrett v. State, 424 S.W.3d 624, 629
Likewise, Appellant has not demonstrated that the            (Tex.App.–Houston [1st Dist.] 2013, pet. ref d). If
portion of the DNA Record Fee that benefits the              this is not possible, specific rules prevail over
state highway fund is facially invalid. Pursuant to          general provisions, absent contrary legislative intent.
article 102.020(h) of the Texas Code of Criminal             Id.; Azeez v. State, 248 S.W.3d 182, 192
Procedure, a portion of collected DNA Record Fee             (Tex.Crim.App.2008). In light of these principles, I
revenue goes into the state highway fund. “[M]oney           would hold that the statute specifically assigning
deposited to the state highway fund under ...                DNA Record Fee revenue in the state highway fund
102.020(h), Code of Criminal Procedure, may be               to DPS for DNA sampling and crime-lab
used only to defray the cost of administering                accreditation prevails over the general statute relied
[subchapter G of chapter 411] and Section                    upon by the Court.
411.0205” of the Texas Government Code. Tex.
Gov't Code Ann. § 411.145 (West 2012).
Subchapter G governs the collection and                      I would further hold that paying for DNA sampling
management of DNA samples, including Appellant's,            and crime-lab accreditation is a valid, constitutional
by DPS. See Tex. Gov't Code Ann. § 411.1471.                 use of the DNA Record Fee under Carson. The trial
Section 411.0205 regulates the accreditation of              court ordered Appellant to surrender a DNA sample
forensic crime laboratories by DPS. Tex. Gov't Code          as part of the investigation of this case. The fee is
Ann. § 411.0205 (West 2012). Thus, under the                 therefore “necessary or incidental” to the trial of
Texas Government Code, the portion of the DNA                Appellant's case. See generally Tex. Gov't Code
Record Fee credited to the state highway fund is             Ann. § 411.143(a) (West 2012) (“The principal
used to defray the costs associated with collecting,         purpose of the DNA database is to assist a federal,
storing, and testing DNA samples.                            state, or local criminal justice agency in the
                                                             investigation or prosecution of sex-related offenses
                                                             or other offenses in which biological evidence is
The Court relies on section 222.002 of the Texas             recovered.”).
Transportation Code, which states that money in the
state highway fund not earmarked for public


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Peraza v. State, --- S.W.3d ---- (2014)




*16 The Court concludes that the fee is an
unconstitutional tax because the revenue could
possibly benefit other activities unrelated to the
statewide DNA database. In doing so, the Court
again relies on web sites outside the record because
Appellant has provided no record evidence of how
the funds are expended and relieves Appellant of his
burden when bringing a facial constitutional
challenge.



Because Appellant has not demonstrated that every
application of the statutes assigning DNA Record
Fee revenue to the state highway fund would be
unconstitutional, I would conclude that Appellant
did not demonstrate that the portion of the DNA
Record Fee that benefits the state highway fund is
facially unconstitutional.




                    Conclusion

Having determined that both portions of the DNA
Record Fee—the 65% that benefits the
criminal-justice planning account and the 35% that
benefits the state highway fund—are sufficiently
related to the prosecution of a criminal case, I would
conclude that Appellant failed to satisfy his burden
of demonstrating that the DNA Record Fee is
facially unconstitutional. Accordingly, I respectfully
dissent.




Footnotes

1       See Tex. Penal Code Ann. § 22.021 (Vernon Supp.2014).


2       See Tex. Code Crim. Proc. Ann. art. 102.011(a)(2) (Vernon Supp.2014) (imposing $50 charge “for executing or processing an issued
        arrest warrant, capias, or capias pro fine”).

3       See id. art. 102.011(a)(1) (imposing $5 charge for arrest without warrant).




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Peraza v. State, --- S.W.3d ---- (2014)




4      See Tex. Code Crim. Proc. Ann. art. 102.020(a)(1) (Vernon Supp.2014) (authorizing collection of $250 fee from persons convicted
       of offenses listed in Texas Government Code section 411.1471(a)(1)). We refer to the fee assessed pursuant to article 102.020(a)(1)
       as a “DNA Record Fee” because it is so labeled in the trial court clerk's bill of costs in each case.

5      Although our dissenting colleague calls into question the reliance on information available through the Texas Department of
       Transportation's website, we note that this Court and others have repeatedly taken judicial notice of information available on various
       websites, including governmental websites. See Tex. R. Evid. 201; see, e.g., Payan v. State, 199 S.W.3d 380, 383 & n. 4
       (Tex.App.–Houston [1st Dist.] 2006, pet. ref'd) (taking judicial notice of information available on “[t]he State Library and Archives
       Commission website”); see also Chen v. Hernandez, No. 03–11–00222–CV, 2012 WL 3793294, at *14 (Tex. App.–Austin Aug. 28,
       2012, pet. denied) (mem. op.) (noting trial court took judicial notice of “government websites,” including “website for the U.S.
       Department of State”); Hayden v. State, 155 S.W.3d 640, 647 (Tex.App.–Eastland 2005, pet. ref'd) (taking judicial notice of
       information available on “website of the United States Naval Observatory”).

6      See Reed v. Buck, 370 S.W.2d 867, 870–71 (Tex.1963) (explaining simply because certain cases had “not been cited in recent years,”
       such “ancient cases” do not “just fade[ ] away”; instead, “unless there is some good reason for overruling them, they should not be
       disregarded”); Purchase v. State, 84 S.W.3d 696, 701 (Tex.App.–Houston [1st Dist.] 2002, pet. ref'd) (“[W]e are bound by the
       decisions of our state's highest criminal court.”).

7      We also note that under chapter 411, subchapter G, the DPS director is assigned numerous responsibilities, including “develop[ing]
       biennial plans” to “improve the reporting and accuracy of the DNA [D]atabase,” “audit[ing] the records, reports, procedures, or other
       quality assurance matters of any DNA laboratory,” and providing “training for collection of DNA samples,” none of which are
       responsibilities that are “necessary [or] incidental to the trial of a criminal case.” See Tex. Gov't Code Ann. §§ 411.142(e),
       411.144(c), 411.146(b) (Vernon 2012); Ex Parte Carson, 143 Tex.Crim. 498, 159 S.W.2d 126, 127, 130 (1942) (discounting notion
       funds for training constitute legitimate court costs).

8      We again note that our dissenting colleague calls into question the reliance on information available through the website of the Office
       of the Governor. However, as stated previously, this Court and others have repeatedly taken judicial notice of information available
       on various websites, including governmental websites. See Tex. R. Evid. 201; see, e.g., Payan, 199 S.W.3d at 383 & n. 4; see also
       Chen, 2012 WL 3793294, at *14; Hayden, 155 S.W.3d at 647.

9      In his fourth issue, appellant argues that the trial court erred in not granting him a hearing on his motions for new trial and in arrest
       of judgment because “[t]o properly challenge the constitutionality of the DNA fees and the faulty Sheriff's fee, a hearing was
       necessary.” Appellant filed his motions in the trial court asserting that “[t]he fees from the Sheriff reflected on the bill[s] of costs are
       wholly unsupported and erroneous” and “[t]he DNA court costs are unconstitutional.” Given our disposition of appellant's second
       and third issues, we do not reach the issue of whether the trial court erred in not granting appellant a hearing on his motions for new
       trial and in arrest of judgment. See Tex. R. App. P. 47.1.

1      See Tex. Code Crim. Proc. Ann. art. 102.020(a)(1) (West Supp.2014) (“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”).

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Peraza v. State, --- S.W.3d ---- (2014)




                                                                      Appellant argues that the statute authorizing collection of the
                     2014 WL 7530437                                  fee is facially unconstitutional under the separation-of-powers
                                                                      clause of the Texas Constitution. Tex. Const. art. II, § 1.
NOTICE: THIS OPINION HAS NOT BEEN RELEASED                            Under that provision, a statute authorizing a court to collect
FOR PUBLICATION IN THE PERMANENT LAW                                  costs “neither necessary nor incidental to the trial of a
REPORTS. UNTIL RELEASED, IT IS SUBJECT TO                             criminal case” is not valid. Ex parte Carson, 159 S.W.2d 126,
REVISION OR WITHDRAWAL.                                               127 (Tex.Crim.App.1942). Appellant makes only a facial
     CONCURRING & DISSENTING OPINION                                  challenge, which requires him to “establish that no set of
                                                                      circumstances exists under which the statute will be valid.”
                Court of Appeals of Texas,                            S an tiko s v . S t a te, 83 6 S.W .2 d 6 3 1 , 6 3 3
                   Houston (1st Dist.                                 (Tex.Crim.App.1992); see also State v. Rosseau, 396 S.W.3d
                                                                      550, 557 (Tex.Crim.App.2013). In my view, Appellant has
                                                                      not shown that every application of the statue violates the
             Osmin Peraza, Appellant                                  Carson standard. I would, therefore, affirm the
                          v.                                          constitutionality of the fee.
            The State of Texas, Appellee
   NO. 01–12–00690–CR, NO. 01–12–00691–CR |
         Opinion issued December 30, 2014                             A. Reviewing a facial challenge
                                                                      When reviewing the constitutionality of a statute, “an
                                                                      appellate court must presume that the statute is valid and that
                                                                      the legislature was neither unreasonable nor arbitrary in
                                                                      enacting it.” Curry v. State, 186 S.W.3d 39, 42 (Tex.
On Appeal from the 184th District Court, Harris County,
                                                                      App.–Houston [1st Dist.] 2005, no pet.) (citing Ex parte
Texas, Trial Court Case Nos. 1305438 and 1305439.                     Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978)). A
Panel consists of Justices Jennings, Sharp, and Brown.
                                                                      reviewing court must make every reasonable presumption in
                                                                      favor of the statute's constitutionality, unless the contrary is
                                                                      clearly shown. Granviel, 561 S.W.2d at 511; see Tex. Gov't
                                                                      Code Ann.. § 311.021 (West 2013) (noting that courts
                                                                      presume “compliance” with Texas and United States
      CONCURRING & DISSENTING OPINION                                 Constitutions).



                                                                      To prevail, the party asserting a facial challenge “must
                                                                      establish that the statute always operates unconstitutionally in
Harvey Brown, Justice
                                                                      all possible circumstances.” Rosseau, 396 S.W.3d at 557.
                                                                      When construing a statute, courts consider, among other
I join with the Court's conclusions that the trial court did not
                                                                      factors, the object sought to be attained by the legislation,
abuse its discretion in denying Appellant's motion to
                                                                      laws on the same or similar subjects, and the consequences of
withdraw his guilty pleas and that the judgment should be
                                                                      a particular construction. Tex. Gov't Code Ann. § 311.023
modified, striking the unsupported “Sheriff's Fee” assessed in
                                                                      (West 2013); see State v. Neesley, 239 S.W.3d 780, 784
both cases. However, I disagree with the Court's conclusion
                                                                      (Tex.Crim.App.2007); Nguyen v. State, 1 S.W.3d 694,
that the “DNA Record Fee”1 is unconstitutional.
                                                                      696–97 (Tex. Crim. App. 1999); see also Dowthitt v. State,
                                                                      931 S.W.2d 244, 258 (Tex. Crim. App. 1996). If a statute can
                                                                      be reasonably interpreted in a manner that does not offend the
                                                                      constitution, a reviewing court must overrule a facial
                                                                      challenge to the statute's constitutionality. Curry, 186 S.W.3d
        Facial Challenge to the DNA Record Fee
                                                                      at 42.


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Peraza v. State, --- S.W.3d ---- (2014)




                                                                    division of the governor's office for reimbursement in the
                                                                    form of grants to the Department of Public Safety of the State
B. Constitutionality of the DNA Record Fee benefiting               of Texas and other law enforcement agencies for expenses
the criminal-justice planning account                               incurred in performing duties imposed on those agencies
Appellant argues that the DNA Record Fee unconstitutionally         under Section 411.1471 or Subchapter B–1, Chapter 420,
benefits the criminal-justice planning account because the          Government Code, as applicable.
account is “too remote” to be considered a necessary or
incidental cost of prosecuting a criminal case as required          Id.
under Carson. 159 S.W.2d at 127 (concluding that law library
fee is remote and unconstitutional). The Court agrees and
cites several possible uses of money from the criminal-justice
planning account that are not related to the prosecution of a
criminal case. This approach is contrary to the standard that       After looking outside the record to press releases and web
applies to claims that a statute is facially unconstitutional       sites, the Court insists that “it cannot be assumed that DPS
because (1) it diminishes the challenger's burden to                was automatically reimbursed by virtue of the ‘DNA Record
demonstrate that all—not some—applications of a statute are         Fee’ for any expenses associated with the collection of
unconstitutional; and (2) it runs afoul of precedent by             [Appellant's] sample” and therefore the fee is an
favoring an unconstitutional reading over a constitutional          unconstitutional tax. This conclusion does not account for the
reading when construing statutes. I would construe the              remainder of subsection (e), which continues:
criminal-justice planning account in its statutory context,
situated among related statutes, and conclude that Appellant        The criminal justice division through a grant [of money from
has not demonstrated that all applications of the statute are       the criminal-justice planning account] shall reimburse the law
unconstitutional under the Carson standard.                         enforcement agency for the costs not later than the 30th day
                                                                    after the date the certified statement is received. If the
                                                                    criminal justice division does not reimburse the law
The Department of Public Safety (“DPS”) is required to              enforcement agency before the 90th day after the date the
collect a DNA specimen from every person charged with               certified statement is received, the agency is not required to
certain categories of crimes, including the crime involved          perform duties imposed under Section 411.1471 or
here—aggravated sexual assault of a child under 14 years of         Subchapter B–1, Chapter 420, Government Code, as
age—and to create a database cataloging the DNA specimens.          applicable, until the agency has been compensated for all
Tex. Gov't Code Ann. § 411.142 (West 2012) (directing DPS           costs for which the agency has submitted a certified statement
to maintain “computerized database that serves as the central       under this subsection.
depository in the state for DNA records” that is compatible
with FBI's national DNA identification index system); id. §         Id. Thus, the Court's skepticism is unjustified given the
411.1471 (West 2012) (requiring collection of DNA                   wording of the statute regarding reimbursement to fund the
specimens from people charged with or convicted of certain          DNA project.
crimes, including aggravated sexual assault of child under 14
years of age); Tex. Penal Code Ann. § 22.021 (West
Supp.2014) (defining aggravated sexual assault of child under
14 years of age). The criminal-justice planning account             The Court also insists that, even if DPS were reimbursed, the
allocates funds toward the collection and management of this        fee is nevertheless unconstitutional because the
statewide criminal DNA database. See Tex.Code Crim. Proc.           criminal-justice planning account funds other unrelated
Ann.. art. 102.056 (West Supp.2014). Specifically, subsection       projects. Following this analysis, it would be enough for a
(e) of article 102.056 directs the Legislature to                   party bringing a facial constitutional challenge to show that
                                                                    some possible applications of a statute are unconstitutional to
determine and appropriate the necessary amount from the             justify invalidating every application of that statute. That is
criminal justice planning account to the criminal justice           the wrong standard. See Santikos, 836 S.W.2d at 633 (“[T]he

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Peraza v. State, --- S.W.3d ---- (2014)




challenger must establish that no set of circumstances exists          The Court relies on section 222.002 of the Texas
under which the statute will be valid.”). While money from             Transportation Code, which states that money in the state
the criminal-justice planning account apparently funds other           highway fund not earmarked for public roadways “may be
programs in addition to the DNA database, Appellant presents           used for any function performed by” the Texas Department of
no evidence that the DNA Record Fee revenue does anything              Transportation (“TxDOT”). Tex. Transp. Code Ann. §
more than reimburse the criminal-justice planning account for          222.002 (West 2011) (emphasis added). TxDOT does not
its DNA-database expenditures. Appellant appears to concede            manage DNA-sample collection, management, or testing. But
that reimbursement for these expenditures would not violate            TxDOT does not have exclusive access to the state highway
Carson. I agree.                                                       fund. Rather, the Transportation Code simply states a general
                                                                       rule that TxDOT “may” access the fund. In contrast, the
                                                                       Government Code provides a specific rule that money from
I would hold that collecting the DNA Record Fee to benefit             the DNA Record Fee in the state highway fund “may be used
the criminal-justice planning account is constitutional because        only ” by DPS to defray the cost of administering the DNA
these funds may be allocated to the statewide criminal DNA             database.Tex. Gov't Code Ann. § 411.145 (emphasis added).
database. Because such an allocation would be constitutional,
Appellant fails to meet his burden of showing that every
application of the statute would result in constitutional injury.      When two statutes concern the same issue, the two should be
See Rosseau, 396 S.W.3d at 557 (noting moving party has                read together as one law, and an appellate court should
burden of demonstrating statute's unconstitutionality in “all its      attempt to harmonize any conflicting provisions. Garrett v.
possible applications.”). Accordingly, I would conclude that           State, 424 S.W.3d 624, 629 (Tex.App.—Houston [1st Dist.]
Appellant has failed to demonstrate that the portion of the            2013, pet. ref'd). If this is not possible, specific rules prevail
DNA Record Fee that benefits the criminal-justice planning             over general provisions, absent contrary legislative intent. Id.;
account is an unconstitutional tax.                                    Azeez v. State, 248 S.W.3d 182, 192 (Tex.Crim.App.2008).
                                                                       In light of these principles, I would hold that the statute
                                                                       specifically assigning DNA Record Fee revenue in the state
C. Constitutionality of the DNA Record Fee benefiting                  highway fund to DPS for DNA sampling and crime-lab
the state highway fund                                                 accreditation prevails over the general statute relied upon by
Likewise, Appellant has not demonstrated that the portion of           the Court.
the DNA Record Fee that benefits the state highway fund is
facially invalid. Pursuant to article 102.020(h) of the Texas
Code of Criminal Procedure, a portion of collected DNA                 I would further hold that paying for DNA sampling and
Record Fee revenue goes into the state highway fund.                   crime-lab accreditation is a valid, constitutional use of the
“[M]oney deposited to the state highway fund under ...                 DNA Record Fee under Carson. The trial court ordered
102.020(h), Code of Criminal Procedure, may be used only               Appellant to surrender a DNA sample as part of the
to defray the cost of administering [subchapter G of chapter           investigation of this case. The fee is therefore “necessary or
411] and Section 411.0205” of the Texas Government Code.               incidental” to the trial of Appellant's case. See generally Tex.
Tex. Gov't Code Ann. § 411.145 (West 2012). Subchapter G               Gov't Code Ann. § 411.143(a) (West 2012) (“The principal
governs the collection and management of DNA samples,                  purpose of the DNA database is to assist a federal, state, or
including Appellant's, by DPS. See Tex. Gov't Code Ann.. §             local criminal justice agency in the investigation or
411.1471. Section 411.0205 regulates the accreditation of              prosecution of sex-related offenses or other offenses in which
forensic crime laboratories by DPS. Tex. Gov't Code Ann. §             biological evidence is recovered.”).
411.0205 (West 2012). Thus, under the Texas Government
Code, the portion of the DNA Record Fee credited to the state
highway fund is used to defray the costs associated with               The Court concludes that the fee is an unconstitutional tax
collecting, storing, and testing DNA samples.                          because the revenue could possibly benefit other activities
                                                                       unrelated to the statewide DNA database. In doing so, the
                                                                       Court again relies on web sites outside the record because

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Peraza v. State, --- S.W.3d ---- (2014)




Appellant has provided no record evidence of how the funds
are expended and relieves Appellant of his burden when
bringing a facial constitutional challenge.



Because Appellant has not demonstrated that every
application of the statutes assigning DNA Record Fee revenue
to the state highway fund would be unconstitutional, I would
conclude that Appellant did not demonstrate that the portion
of the DNA Record Fee that benefits the state highway fund
is facially unconstitutional.




                         Conclusion

Having determined that both portions of the DNA Record
Fee—the 65% that benefits the criminal-justice planning
account and the 35% that benefits the state highway
fund—are sufficiently related to the prosecution of a criminal
case, I would conclude that Appellant failed to satisfy his
burden of demonstrating that the DNA Record Fee is facially
unconstitutional. Accordingly, I respectfully dissent.




Justice Brown, concurring in part and dissenting in part.




Footnotes

1       See Tex.Code Crim. Proc. Ann.. art. 102.020(a)(1) (West Supp.2014) (“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”).

End of Document                                                          © 2015 Thomson Reuters. No claim to original U.S. Government Works.




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