                                         COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                           EL PASO, TEXAS

                                                         §
    DAMON MARKIETH ASBERRY,                                                 No. 08-15-00058-CR
                                                         §
                                   Appellant,                                  Appeal from the
                                                         §
    v.                                                                 Criminal District Court No. 3
                                                         §
    THE STATE OF TEXAS,                                                   of Tarrant County, Texas
                                                         §
                                   Appellee.                                   (TC# 1347455D)
                                                         §

                                                 O P I N I O N1

         Damon Markieth Asberry was convicted of one count of aggravated sexual assault of a

child younger than 14 years of age (Count I) and two counts of indecency with a child (Counts II

and III). The trial court assessed punishment of 15 years’ imprisonment on Counts I and II and 10

years’ imprisonment on Count III, to run concurrently. Attached to the judgment of conviction

and sentence for Count I is a bill of court costs.2 Amongst the costs imposed is a $250.00 “DNA

Testing” fee authorized by Article 102.020 of the Texas Code of Criminal Procedure. See

TEX.CODE CRIM.PROC.ANN. art. 102.020(a)(1)(West Supp. 2015); TEX.GOV’T CODE ANN.


1
 This case was transferred to this Court from the Second Court of Appeals pursuant to an order issued by the Supreme
Court of Texas. See TEX.GOV’T CODE ANN. § 73.001 (West 2013).
2
  Although no bills of costs were attached to the judgments of conviction and sentence for Counts II and III, Asberry
asserts “the trial court intended to issue the DNA Testing Fee against each conviction.” See TEX.GOV’T CODE ANN.
§ 411.1471(a)(1)(B)(West Supp. 2015). The State does not challenge Asberry’s assertion.
§ 411.1471(a)(1)(D)(West Supp. 2015). By statutory decree, 35 percent of this fee is allocated to

the state highway fund and 65 percent to the criminal justice planning account. See TEX.CODE

CRIM.PROC.ANN. art. 102.020(h).

         On appeal, Asberry argues that, because none of the statutorily authorized uses for this fee

are necessary or incidental to the trial of a criminal case, the fee always operates as an

unconstitutional tax, not a legitimate court cost, under the standard set forth in Ex Parte Carson.

See 143 Tex.Crim. 498, 505-06, 159 S.W.2d 126, 130 (1942)(op. on motion for reh’g)(holding that

a $1 law library fee was not a valid court cost because its use in establishing and maintaining a law

library was not necessary or incidental to the trial of a criminal case).                               But Asberry’s

constitutional complaint fails for two reasons.

         First and foremost, he did not preserve it for our review because he failed to present it to the

trial court. See Davis v. State, No. 02-15-00163-CR, 2015 WL 5770516, at *4 (Tex.App.--Fort

Worth Oct. 1, 2015, pet. filed)(mem. op., not designated for publication)(holding that a facial

challenge to the constitutionality of Section 133.102 of the Texas Local Government Code, which

states that a defendant “shall pay” $133 “on conviction of a felony,” cannot be raised for the first

time on appeal);3 Guerrero v. State, Nos. 01-13-00821-CR, 01-13-00822-CR, 2015 WL 2266247,

at *3-*4 (Tex.App.--Houston [1st Dist.] May 14, 2015, pet. filed)(mem. op., not designated for

publication)(same); Thias v. State, No. 07-12-00513-CR, 2014 WL 6556530, at *2

(Tex.App.--Amarillo Nov. 20, 2014, no pet.)(mem. op., not designated for publication)(same).



3
  Because this case was transferred to this Court from the Second Court of Appeals and we have yet to address
whether an appellant may raise a facial challenge to the constitutionality of Article 120.020 for the first time on appeal,
we will follow precedent from the Second Court of Appeals. See TEX.R.APP.P. 41.3 (“In cases transferred by the
Supreme Court from one court of appeals to another, the court of appeals to which the case is transferred must decide
the case in accordance with the precedent of the transferor court under principles of stare decisis if the transferee
court’s decision otherwise would have been inconsistent with the precedent of the transferor court.”).
                                                            2
Second and alternatively, the Court of Criminal Appeals recently considered and rejected

Asberry’s complaint in Peraza v. State, a case involving the same issue. See 467 S.W.3d 508, 517

(Tex.Crim.App. 2015)(rejecting the argument that Article 102.020 is facially unconstitutional

under the Carson standard for determining whether a court cost is valid because this standard

“ignores the legitimacy of costs that, although not necessary to, or an incidental expense of, the

actual trial of a criminal case, may nevertheless be directly related to the recoupment of costs of

judicial resources expended in connection with the prosecution of criminal cases within our

criminal justice system.”). As an intermediate appellate court, we are bound by the controlling

decisions of the court of criminal appeals. See TEX.CONST. art. V, § 5(a)(court of criminal

appeals is final authority for criminal law in Texas). Accordingly, we overrule Asberry’s issue.

       The trial court’s judgments are affirmed.


December 4, 2015
                                             YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)




                                                3
