                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-16-00157-CR


ARMIN GLENN INGRAM                                                  APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE


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      FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
                    TRIAL COURT NO. 1437346R

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                                   OPINION

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      Appellant Armin Glenn Ingram appeals from his conviction for continuous

sexual abuse of a young child (CSA) and from his conviction for indecency with a

child by contact.     Appellant also attacks a cost designated for child-abuse

prevention and a consolidated court cost that were imposed in the judgment

regarding his conviction for CSA. We affirm the trial court’s judgments. See Tex.

R. App. P. 43.2(a).
                                 I. BACKGROUND

      Appellant was charged in a seven-count indictment with CSA and with

indecency with a child by contact. A jury found him guilty of these two offenses

and assessed his punishment at life confinement for CSA and at twenty years’

confinement with a $10,000 fine for indecency with a child by contact. 1 In the

judgment regarding his CSA conviction, the trial court assessed $669 in court

costs, which the bill of costs showed included a consolidated court cost of $133

and $100 for “Child Abuse Prv.”2 No court costs were imposed in the judgment

for Appellant’s conviction for indecency.   Appellant appealed both convictions

and argues (1) that the trial court erred by denying his requested jury charge on

unanimity in the CSA charge and (2) that the statutes authorizing the

consolidated court cost and the child-abuse-prevention cost in the imposed court

costs in the CSA judgment are facially unconstitutional as violative of the

separation-of-powers doctrine.




      1
        The remaining five counts were lesser-included offenses of the CSA
count, were charged to the jury as such, and, thus, were not decided by the jury
once it found Appellant guilty of CSA.
      2
       The bill of costs was not expressly incorporated into the judgment and
was separately filed by the district clerk. Cf. Tex. Code Crim. Proc. Ann. art.
42.01, § 1 (West Supp. 2016) (setting forth required information to be included in
judgment, which does not include bill of costs); Armstrong v. State, 340 S.W.3d
759, 767 (Tex. Crim. App. 2011) (holding bill of costs is effective even if not
expressly incorporated into the judgment).


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                             II. INDECENCY CONVICTION

         We begin by recognizing that although Appellant’s notice of appeal clearly

attacked both the CSA judgment and the indecency judgment, none of his points

on appeal raise any argument directed to his conviction for indecency with a

child.    Accordingly, we affirm the trial court’s judgment regarding Appellant’s

conviction for indecency with a child by contact. See, e.g., In re R.J., No. 03-14-

00389-CV, 2015 WL 6830674, at *2 (Tex. App.—Austin Nov. 6, 2015, no pet.)

(mem. op.).

                                 III. CSA CONVICTION

                                    A. JURY CHARGE

         Appellant argues in his first point that the trial court erred by overruling his

objection to the jury charge regarding CSA.           During the charge conference,

Appellant objected to the CSA charge “on constitutional [due process] grounds,”

arguing that the charge “allow[ed] the jury to find a person guilty on the basis of a

nonunanimous verdict.” The trial court overruled this objection. The trial court

then instructed the jury that it need not unanimously agree “on which specific

acts of sexual abuse were committed by [Appellant] or the exact date when those

acts were committed,” but that it did need to unanimously find that “the

[Appellant], beyond a reasonable doubt, during a period that is 30 or more days

in duration, committed two or more acts of sexual abuse.”             Appellant, as he

asserted in the trial court, now argues that the alleged specific acts of sexual

abuse alleged in the indictment and charged to the jury were not the mere


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manner and means of committing CSA as provided by statute but were separate

elements of the offense that were constitutionally and statutorily required to be

found unanimously by the jury. See Tex. Const. art. V, § 13; Tex. Code Crim.

Proc. Ann. art. 36.29(a) (West Supp. 2016); Tex. Penal Code Ann. § 21.02(d)

(West Supp. 2016).

      Appellant laudably recognizes that his argument has been rejected by this

court. Indeed, we and other courts of appeals have held that the specific acts of

sexual abuse alleged to have constituted CSA are not separate elements of the

offense subject to the unanimity requirement. See Pollock v. State, 405 S.W.3d

396, 404–05 (Tex. App.—Fort Worth 2013, no pet.); see also Machado v. State,

No. 02-15-00365-CR, 2016 WL 3962731, at *3–4 (Tex. App.—Fort Worth July

21, 2016, pet. ref’d) (mem. op., not designated for publication); Lewis v. State,

No. 02-10-00004-CR, 2011 WL 2755469, at *6 (Tex. App.—Fort Worth July 14,

2011, pet. ref’d) (mem. op., not designated for publication); accord, e.g., Martin v.

State, 335 S.W.3d 867, 871–73 (Tex. App.—Austin 2011, pet. ref’d), cert. denied,

133 S. Ct. 645 (2012); Render v. State, 316 S.W.3d 846, 856–58 (Tex. App.—

Dallas 2010, pet. ref’d), cert. denied, 562 U.S. 1243 (2011). For the reasons

stated in these cases, we conclude that the constitutional and statutory

requirements of jury unanimity are not violated by section 21.02(d) of the penal

code. Accordingly, the trial court did not err by instructing the jury in accordance

with section 21.02(d) regarding the specific acts of sexual abuse alleged in the

indictment. See Pollock, 405 S.W.3d at 405. We overrule point one.


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                           B. IMPOSED COSTS AND FEES

      In his second and third points, Appellant argues that the statutes

authorizing two of the specified items in the bill of costs regarding the total costs

imposed in the CSA judgment are facially unconstitutional because they

effectively turn the judicial branch into a tax collector, violating the separation of

powers. See Tex. Const. art. II, § 1.

      The State argues that Appellant waived his right to challenge the imposed

court costs—a nonsystemic, nonpenal challenge—because he raises it for the

first time on appeal. We conclude that Appellant may raise these complaints on

appeal, even though he did not raise them to the trial court, because the costs

were not imposed in open court or itemized in the judgment. See London v.

State, 490 S.W.3d 503, 506–07 (Tex. Crim. App. 2016); see, e.g., Bowden v.

State, No. 14-14-00955-CR, 2016 WL 6123363, at *1 (Tex. App.—Houston [14th

Dist.] Oct. 18, 2016, pet. filed) (holding, under London, constitutional challenge to

cost under the local government code may be raised for the first time on appeal);

Rogers v. State, No. 02-16-00047-CR, 2016 WL 4491228, at *1 (Tex. App.—Fort

Worth Aug. 26, 2016, pet. filed) (mem. op., not designated for publication)

(holding same regarding cost under code of criminal procedure).            But even

though Appellant did not waive his arguments, they are unavailing.

      The court costs at issue—the child-abuse-prevention cost and the

consolidated court cost—were authorized, respectively, by the code of criminal

procedure and the local government code.            Tex. Code Crim. Proc. Ann.


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art. 102.0186(c) (West Supp. 2016); Tex. Loc. Gov’t Code Ann. § 133.102(a)(1)

(West Supp. 2016). With his facial challenge, Appellant has the burden to

establish these statutes’ unconstitutionality. See Peraza v. State, 467 S.W.3d

508, 514 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 1188 (2016).           To

successfully do so, Appellant must establish that no set of circumstances exists

under which these statutes would be valid. See id. We look for an interpretation

that supports and upholds a statute’s constitutionality unless the contrary

interpretation is clearly shown.   See id.     Regarding statutes authorizing the

imposition of court costs against criminal defendants, the court of criminal

appeals has specified that for such statutes to pass constitutional muster, they

must “provide[] for an allocation of . . . court costs to be expended for legitimate

criminal justice purposes,” which are ones that “relate[] to the administration of

our criminal justice system.” Id. at 517–18.

      Regarding section 133.102(a)(1)’s consolidated court cost, Appellant

asserts that three of the fourteen prescribed percentage allocations for the $133

do not relate to the criminal-justice system. Specifically, he points to (1) the

allocation of 5.0034% to “law enforcement officers standards and education,”

which is now collected into an account in the general revenue fund; (2) the

allocation of 9.8218% to “comprehensive rehabilitation,” which is spent at the

direction of an agency in the executive branch; and (3) the allocation of 0.0088%

to a fund for “abused children’s counseling” with no statutory direction to which

State account the percentage should be directed. See Tex. Loc. Gov’t Code


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Ann. § 133.102(e)(1), (5), (6).    These three allocations combined, therefore,

account for 14.834%—or approximately $19.73—of the $133 imposed.                 We

conclude, as have other courts of appeals, that these three designated uses as

written are related to the administration of the criminal-justice system and that the

legislature’s directive to the comptroller to disburse those monies for those uses

passes constitutional muster. See Salinas v. State, 485 S.W.3d 222, 226 (Tex.

App.—Houston [14th Dist.] 2016, pet. granted) (op. on remand); Penright v.

State, 477 S.W.3d 494, 497–500 (Tex. App.—Houston [1st Dist.] 2015, pet.

granted); cf. Denton v. State, 478 S.W.3d 848, 851–52 (Tex. App.—Amarillo

2015, pet. ref’d) (concluding section 133.102 does not violate Takings Clause of

Texas Constitution). This is true notwithstanding where the funds actually are

deposited or disbursed. See Salinas v. State, 464 S.W.3d 363, 368 (Tex. Crim.

App. 2015) (holding consideration in facial-constitutional challenge is “how the

statute is written, not how it operates in practice,” and is “without regard to

severability principles or to evidence of what the funds designated in the statute

actually do”). Accordingly, Appellant has failed to carry his burden to establish

that section 133.102 cannot operate constitutionally under any circumstance, i.e.,

that the statute is invalid in all possible applications.    See McAfee v. State,

467 S.W.3d 622, 645–47 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d);

O’Bannon v. State, 435 S.W.3d 378, 381–82 (Tex. App.—Houston [14th Dist.]

2014, no pet.) (op. on remand). We overrule point three.




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      Appellant also contends that article 102.0186 of the code of criminal

procedure is facially unconstitutional because child-abuse-prevention programs

are “too remote” from the administration of the criminal justice system.          We

disagree.   Article 102.0186 applies to criminal defendants convicted of five

specified sexual offenses committed against children (including CSA), of

employment harmful to children, and of possession or promotion of child

pornography.    Tex. Code Crim. Proc. Ann. art. 102.0186(a).           Because the

imposition of this cost is limited to those defendants found guilty of crimes

against children, the $100 imposed to be deposited in “the county child abuse

prevention fund” is related to the administration of the criminal justice system

such that this cost is not facially unconstitutional. Id. art. 102.0186(c); cf. Garcia

v. State, No. 02-15-00315-CR, 2016 WL 4474346, at *3 (Tex. App.—Fort Worth

Aug. 25, 2016, pet. ref’d) (mem. op., not designated for publication) (concluding

appellant failed to show article 102.0186 was facially unconstitutional based on

his argument, since rejected by the court of criminal appeals, that the cost was

unnecessary or not incidental to criminal justice); Machado, 2016 WL 3962731,

at *4 (same). Appellant has not carried his burden to show unconstitutionality,

and we overrule point two.

                                IV. CONCLUSION

      Because Appellant has not challenged his indecency conviction, has failed

to show that the trial court erred by overruling his constitutional objection to the

jury charge regarding CSA, and has failed to establish that the statutes


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authorizing the imposition of specified court costs are facially unconstitutional, we

overrule Appellant’s points and affirm the trial court’s judgments.


                                                    /s/ Lee Gabriel

                                                    LEE GABRIEL
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ.

PUBLISH

DELIVERED: November 23, 2016




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