                                                                                    ACCEPTED
                                                                               01-14-00675-CR
                                                                      FIRST COURT OF APPEALS
                                                                             HOUSTON, TEXAS
                                                                          2/3/2015 10:27:01 AM
                                                                           CHRISTOPHER PRINE
                                                                                        CLERK

                     NO. 01-14-00675-CR
                     NO. 01-14-00676-CR
                                                             FILED IN
                 IN THE COURT OF APPEALS              1st COURT OF APPEALS
                                                          HOUSTON, TEXAS
              FOR THE FIRST DISTRICT OF TEXAS         2/3/2015 10:27:01 AM
                                                      CHRISTOPHER A. PRINE
                                                              Clerk
                  ISRAEL MONTOYA ALCARAZ
                          Appellant

                               v.

                     THE STATE OF TEXAS
                            Appellee


      On Appeal from Cause Numbers 1394947 & 1394948
      From the 174th District Court of Harris County, Texas



                    BRIEF FOR APPELLANT



ORAL ARGUMENT WAIVED                      ALEXANDER BUNIN
                                          Chief Public Defender
                                          Harris County, Texas

                                          ANGELA L. CAMERON
                                          Assistant Public Defender
                                          Harris County, Texas
                                          TBN 00788672
                                          1201 Franklin, 13th Floor
                                          Houston, Texas 77002
                                          Phone: (713) 368-0016
                                          Fax: (713) 368-9278

                                          Counsel for Appellant
                   IDENTITY OF PARTIES AND COUNSEL


APPELLANT:                                Israel Montoya Alcaraz
                                          TDC #01942296
                                          Telford Unit
                                          3899 Hwy 98
                                          New Boston, Texas 75570

TRIAL PROSECUTOR:                         Amy McCauley
                                          Assistant District Attorney
                                          Harris County, Texas
                                          1201 Franklin Avenue
                                          Houston, Texas 77002

DEFENSE COUNSEL AT TRIAL:                 Mark Thering
                                          1305 Prairie
                                          Houston, Texas 77002

PRESIDING JUDGE:                          Hon. Ruben Guerrero
                                          174th District Court
                                          Harris County, Texas
                                          1201 Franklin Avenue, 19th floor
                                          Houston, Texas 77002

COUNSEL ON APPEAL FOR APPELLANT:          Angela Cameron
                                          Assistant Public Defender
                                          Harris County, Texas
                                          1201 Franklin Avenue, 13th floor
                                          Houston, Texas 77002




                                  2
                                                  TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .................................................................. 2

TABLE OF CONTENTS .................................................................................................... 3

INDEX OF AUTHORITIES .............................................................................................. 4

STATEMENT OF THE CASE .......................................................................................... 5

ISSUES PRESENTED ......................................................................................................... 6

STATEMENT OF FACTS .................................................................................................. 7

SUMMARY OF THE ARGUMENT ................................................................................. 8

ISSUE ONE ........................................................................................................................... 9

          The DNA court cost assessed against Appellant is an unconstitutional
          tax on Appellant.

          Preservation of Error ................................................................................................. 9
          Applicable Law ............................................................................................................ 9

ISSUE TWO ......................................................................................................................... 12

          The written judgments should be modified to remove a Sheriff’s fee that
          is not supported by the record.


ISSUE THREE ................................................................................................................... 12

          The written judgments should be reformed to correctly reflect Appellant
          has the right to appeal.

PRAYER ............................................................................................................................... 14

CERTIFICATE OF SERVICE ......................................................................................... 15

CERTIFICATE OF COMPLIANCE .............................................................................. 16



                                                                   3
                                           INDEX OF AUTHORITIES
Cases

Asberry v. State, 813 S.W.2d 526 (Tex. App. – Dallas 1991, pet. ref'd) ........................... 13

Cardenas v. State, 423 S.W.3d 396 (Tex. Crim. App. 2014) ................................................. 9

Evans v. State, No. 01-11-00021-CR, 2012 WL 1379632 (Tex. App. – Houston [1st
 Dist.] April 19, 2012, no pet.)(mem. op. not designated for publication) ................. 13

Ex parte Carson, 159 S.W.2d 126 (1942) ............................................................................. 10

Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. 2014) ................................................... 9

Nolan v. State, 39 S.W.3d 697 (Tex. App. – Houston [1st Dist.] 2001, no pet.) ............ 13

Peraza v. State, No. 01-12-00690-CR, 2014 WL 7476214 (Tex. App. – Houston [1st
  Dist.] Dec. 30, 2014, no. pet. h.) .................................................................... 8, 10, 11, 12

Statutes

Tex. Code Crim. Proc. art 102.001(a)(1) .......................................................................... 12

Tex. Code Crim. Proc. art. 102.020(a)(1)............................................................................. 9

Tex. Code Crim. Proc. art. 102.020(h). .............................................................................. 11

Tex. Code Crim. Proc. art. 103.008. ..................................................................................... 9

Tex. Gov't Code Ann. §411.1471(a)(1).......................................................................... 9, 10

Tex. Gov't Code Ann. §772.006(a)(2)............................................................................... 11




                                                            4
                                      STATEMENT OF THE CASE

          Mr. Alcaraz was indicted for Aggravated Sexual Assault of Child and

Possession of Child Pornography (C.R. 1 at 25) (C.R. 2 at 16). 1 Alcaraz pled guilty

without an agreed recommendation and his cases were set for a presentence

investigation hearing. (C.R. 1 at 32) (C.R. 2 at 24). Following a presentence

investigation hearing, the trial court sentenced Alcaraz to 50 years confinement in the

Texas Department of Criminal Justice in the sexual assault case and 10 years

confinement in the child pornography case. (C.R. 1 at 62) (C.R. 2 at 37) (1 R.R. at 87-

88). The court ordered the sentences to be served concurrently (C.R. 1 at 62) (C.R. 2

at 37). Alcaraz filed a timely notice of appeal (C.R. 1 at 67) (C.R. 2 at 40). A motion

for new trial was filed but not presented (C.R. 1 at 77) (C.R. 2 at 52).




1
    The clerk’s record will be cited as follows:

C.R. 1            …… Clerk’s record in trial cause number 1394947, 01-14-00675-CR
C.R. 2            …… Clerk’s record in trial cause number 1394948, 01-14-00676-CR
Supp. C.R. 1      …… Supplemental Clerk’s record in trial cause number 1394947, 01-14-00675-CR
Supp. C.R. 2      …… Supplemental Clerk’s record in trial cause number 1394948, 01-14-00676-CR


                                                   5
                         ISSUES PRESENTED

                             ISSUE ONE

The DNA court cost assessed against Appellant is an unconstitutional
tax on Appellant.

                             ISSUE TWO

The written judgments should be modified to remove a Sheriff’s fee that
is not supported by the record.

                            ISSUE THREE

The written judgments should be reformed to correctly reflect Appellant
has the right to appeal.




                                  6
                                STATEMENT OF FACTS

        Alcaraz is the stepfather of the complainant E.H. (PSI at 7). While on a family

vacation, E.H.’s mother asked to use Alcaraz’s cell phone to take photos as her phone

was not charged (1 R.R. at 41). After taking photos, E.H.’s mother wanted to view

them.     She scrolled through the phone and discovered several inappropriate

photographs of E.H. which had been taken on four different dates. (1 R.R. at 11-13,

41-42). E.H.’s mother identified E.H. as the subject of the photographs based on the

clothing and the room in which the photos were taken (1 R.R. at 10).

        The photographs showed E.H. sleeping and her clothing being moved in order

to expose her buttocks, breast and vagina (1 R.R. at 12-14).           In one of the

photographs, digital penetration of E.H.’s vagina could be seen (1 R.R. at 15 & 31).

Law enforcement identified the hand in the photo as belonging to Alcaraz by

comparing a scar on one of the fingers to Alcaraz’s hands (1 R.R. at 15). This

photograph formed the basis of the Aggravated Sexual Assault of a Child charge.




                                           7
                           SUMMARY OF THE ARGUMENT

      Alcaraz argues the judgments in each case should be modified to delete $255 in

court costs. This amount represents a $250 DNA Testing Fee pursuant to Tex. Code

Crim. Proc. art. 102.020, which this Court has recently held unconstitutional in Peraza

v. State, No. 01-12-00690-CR, 2014 WL 7476214 (Tex. App. – Houston [1st Dist.]

Dec. 30, 2014, no. pet. h.). The remaining $5 represents a sheriff’s fee for making an

arrest without a warrant which is not supported by the record.

      Alcaraz also argues the judgment should be reformed to correctly reflect he has

the right to appeal. The current judgment states “Appeal Waived. No Permission to

Appeal Granted.”       However the record contains an Amended Trial Court

Certification which states the case “is not a plea-bargain case, and the defendant has

the right of appeal” and the boilerplate waiver language in the plea papers is not

binding.




                                          8
                                       ISSUE ONE

         THE DNA COURT COST ASSESSED AGAINST APPELLANT                     IS AN
         UNCONSTITUTIONAL TAX ON APPELLANT.

Preservation of Error

         Challenges to court costs can be raised for the first time on appeal and

“[c]onvicted defendants have constructive notice of mandatory court costs set by

statute and the opportunity to object to the assessment of court costs against them for

the first time on appeal or in a proceeding under Article 103.008 of the Texas Code of

Criminal Procedure.” Cardenas v. State, 423 S.W.3d 396, 399 (Tex. Crim. App. 2014).

In a companion case decided the same day, Johnson v. State, the Court further explained

that because the cost bill is most likely unavailable at the time of the judgment, an

“[a]ppellant need not have objected at trial to raise a claim challenging the bases of

assessed costs on appeal.” Johnson v. State, 423 S.W.3d 385, 391 (Tex. Crim. App.

2014).

Applicable Law

         Both judgments contain court costs to be assessed against Mr. Alcaraz (C.R. 1

at 62) (C.R. 2 at 37). The clerk’s record in each case contains a bill of cost supporting

the amount noted in the judgment (C.R. 1 at 64) (C.R. 2 at 39). The bills of cost show

Alcaraz was charged $250 in each case as a DNA Testing Fee (C.R. 1 at 64) (C.R. 2 at

39). Tex. Code Crim. Proc. art. 102.020(a)(1) provides that “[a] person shall pay as a

cost of court $250 on conviction of an offense listed in Section 411.1471(a)(1),

                                           9
Government Code.” Both aggravated sexual assault of a child and possession of child

pornography are offenses listed in Section 411.1471(a)(1). Thus the $250 cost was

properly included in the bills of cost.

       However in Peraza v. State, this Court held the DNA Record Fee was not a

legitimate court cost, but was instead an unconstitutional tax. Peraza v. State, No. 01-

12-00690-CR, 2014 WL 7476214 (Tex. App. – Houston [1st Dist.] Dec. 30, 2014, no.

pet. h.). In reaching this conclusion, this Court relied on Ex parte Carson, 159 S.W.2d

126, 130 (1942), wherein the Court of Criminal Appeals found that a $1 law library fee

was “neither necessary nor incidental to the trial of a criminal case” and as such was

“not a legitimate” cost of court.

       In Peraza, the Court first addressed the thirty-five percent of the funds which

are to be deposited in state highway fund. The Court determined that these funds

“may be used for any function of TxDOT” and are not specifically limited to “defray the

costs associated with collecting, storing, and testing DNA samples” Peraza at 6 & 7

(emphasis in original). After examining the TxDOT’s mission statement and the

various statutes listing TxDOT’s responsibilities, the Court held that because “the

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 preparation in

Carson”…it could not be “reasonably concluded that the portion of the revenue

collected through the ‘DNA Record Fee’ and dedicated to the state highway fund



                                          10
constitutes a proper court cost to be assessed against appellant or any other criminal

defendant.” Id. at 7.

       The Court then turned to the remaining sixty-five percent which is deposited in

the criminal justice planning account. Tex. Crim. Proc. art. 102.020(h). “The criminal

justice planning account is administered by the Criminal Justice Division (“CJD”) of

the Governor's Office. Peraza at 8 citing Tex. Gov't Code Ann. §772.006(a)(2)

(Vernon 2012). Once again looking at the administering organization’s mission, the

Court determined “[t]he CJD …uses this money to ‘[s]upport a wide range of projects

designed to reduce crime and improve the criminal and juvenile justice systems.’”

Peraza at 9. The Court then found “the criminal justice planning account, which is

funded by the “DNA Record Fee,” [does not ]pass[ ] constitutional muster” stating:

       …the money from the criminal justice planning fund is not required to
       be directed to the courts or to services necessarily or incidentally related
       to criminal trials. And often times such revenue is given to programs
       that, as the court in Carson specifically noted, could not possibly relate to
       legitimate court costs. See 159 S.W.2d at 127 (costs for training and
       education not legitimate court costs that may be assessed against
       criminal defendants).
Id. at 10.

       As Mr. Alcaraz was assessed the same DNA fee that this Court has found

unconstitutional, Alcaraz requests this Court modify each judgment to delete the $250

charge from the court costs. See Peraza v. State, No. 01-12-00690-CR, 2014 WL

7476214 (Tex. App. – Houston [1st Dist.] Dec. 30, 2014, no. pet. h.)(proper remedy

for unsupported fee to modify the judgment).

                                            11
                                      ISSUE TWO

      THE  WRITTEN JUDGMENTS SHOULD BE MODIFIED TO REMOVE A
      SHERIFF’S FEE THAT IS NOT SUPPORTED BY THE RECORD.

      Tex. Code Crim. Proc. art 102.001(a)(1) provides that a $5 court cost may be

assessed when a peace officer makes an arrest without a warrant. Tex. Code Crim.

Proc. art 102.001(a)(2) provides that a peace officer may charge $50 for executing an

arrest warrant, capias or capias pro fine. The cost bills in both cases indicate Alcaraz

was assessed both a $50 fee for “serving capias” and a $5 fee for “arrest w/o

Warrant/Capias” (C.R. 1 at 64) (C.R. 2 at 39). One cannot be arrest both with and

without a warrant or capias. It must be one or the other. The record indicates a

warrant had issued at the time of Alcaraz’s arrest (1 R.R. at 15). Thus the proper fee

amount is $50 and each judgment should be modified to delete $5 fee from court

costs. See Peraza v. State, No. 01-12-00690-CR, 2014 WL 7476214 (Tex. App. –

Houston [1st Dist.] Dec. 30, 2014, no. pet. h.)(proper remedy for unsupported fee to

modify the judgment).

                                        ISSUE THREE

      THE  WRITTEN JUDGMENTS SHOULD BE REFORMED TO CORRECTLY
      REFLECT APPELLANT HAS THE RIGHT TO APPEAL.

      An appellate court has the power to correct and reform a trial court judgment

“to make the record speak the truth when it has the necessary data and information to

do so, or make any appropriate order as the law and nature of the case may require.”



                                          12
Nolan v. State, 39 S.W.3d 697, 698-99 (Tex. App. - Houston [1st Dist.] 2001, no pet.)

citing Asberry v. State, 813 S.W.2d 526, 529 Tex. App. - Dallas 1991, pet. ref'd).

       Both judgments contain the following language:

              Furthermore, the following special findings or orders apply:
              APPEAL WAIVED. NO PERMISSION TO APPEAL GRANTED.

(C.R. 1 at 63) (C.R. 2 at 38).

       The record contains several trial court certifications. On April 14, 2014, the day

Alcazar entered his guilty pleas, the court signed a certification in each case but failed

to check any of the options provided on the form. (C.R. 1 at 41) (C.R. 2 at 32). On

July 17, 2014, the day Alcaraz was sentenced, the court again signed certifications in

each case. In the sexual assault case, the trial box stating the defendant has the right

to appeal is checked and the box stating the defendant had waived the right to appeal

is also checked as well as having initials next to it (C.R. 1 at 65). Additionally a third

box stating the case was a plea bargain case appears to have been initially checked but

marked out (C.R. 1 at 65). In the child pornography case the trial court indicated the

defendant had the right to appeal (C. R. 2 at 43).

       Finally, on January 13, 2015, pursuant to this Court’s Order of Abatement, a

third set of certifications were filed stating the case “is not a plea-bargain case and the

defendant has the right of appeal.” (Supp. C.R. 1 at 3) (Supp. C.R. 2 at 3).

       In Evans v. State, No. 01-11-00021-CR, 2012 WL 1379632 (Tex. App. –

Houston [1st Dist.] April 19, 2012, no pet.)(mem. op. not designated for publication)

                                            13
the First Court of Appeals modified the judgment when faced with a similar situation.

Evans pled guilty without a plea bargain and the case was set for a presentence

investigation report. The judgment and the boilerplate plea papers said Evans had

waived his right of appeal but the trial court’s certification stated Evans had the right

to appeal.

         The Court reformed the judgment finding the boilerplate waiver of appeal

language was not binding because it was executed before the trial court proceeded to

adjudicate guilt, it was not bargained for and there was no recommended sentence.

         These same three factors are present in Alcaraz’s case. The plea papers and the

original trial court certification were executed prior to the court finding Alcaraz

guilty.2 There is nothing in the record to indicate the parties bargained for Alcaraz to

waive his appeal and the plea papers affirmatively reflect there was no recommended

sentence (C.R. 1 at 32) (C.R. 2 at 24). The trial court also confirmed there was no

agreed recommendation (1 R.R. at 3). Thus, Alcaraz requests this Court to correct

and reform the trial court judgments to delete the notation “Appeal Waived. No

Permission to Appeal Granted.”

                                                             PRAYER

         Mr. Alcaraz respectfully requests that this Court reform the judgment to reflect

reduce the court costs by $255 in each case to remove the unconstitutional DNA fee,


2Prior to the beginning of the PSI hearing, the trial court specifically stated on the record, “There was no finding of guilt
on these cases” (1 R.R. at 3).

                                                            14
and the unsupported Sheriff’s fee of $5. Alcaraz also asks the Court to remove the

notation “Appeal Waived. No Permission to Appeal Granted”.

                                                Respectfully submitted,

                                                Alexander Bunin
                                                Chief Public Defender

                                                /s/ Angela Cameron
                                                Angela Cameron
                                                State Bar No. 00788672
                                                Assistant Public Defender
                                                Harris County Texas
                                                1201 Franklin 13th Floor
                                                Houston Texas 77002c
                                                (713) 368-0016
                                                angela.cameron@pdo.hctx.net




                              CERTIFICATE OF SERVICE

      I certify that I provided a copy of the foregoing brief to the Harris County

District Attorney via hand delivery on the day the brief was filed.


                                                /s/ Angela Cameron
                                                Angela Cameron




                                           15
                            CERTIFICATE OF COMPLIANCE

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

with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).

1.    Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this brief

contains 2,816 words printed in a proportionally spaced typeface.

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

14 point font in text and Garamond 12 point font in footnotes produced by

Microsoft Word software.

3.    Upon request, undersigned counsel will provide an electronic version of this

brief and/or a copy of the word printout to the Court.

4.     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.

                                                /s/ Angela Cameron
                                                Angela Cameron




                                           16
