                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-16-00052-CR


TAM KIMBERLY NGUYEN                                                  APPELLANT

                                         V.

THE STATE OF TEXAS                                                         STATE


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           FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
                       TRIAL COURT NO. 1415257D

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                           MEMORANDUM OPINION1

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      Appellant Tam Kimberly Nguyen pled guilty to committing criminal

mischief, causing pecuniary loss of more than $1,500 but less than $20,000.2

The trial court found her guilty, ordered a presentence investigation report (PSI),

      1
          See Tex. R. App. P. 47.4.
      2
       See Act eff. Sept. 1, 2009, 81st Leg., R.S., ch. 638, § 1, 2009 Tex. Gen.
Laws 1433, 1433–34 (amended 2015) (current version at Tex. Penal Code Ann.
§ 28.03(a)–(b)(4) (West Supp. 2016)).
and, after a hearing, sentenced her to one year’s incarceration in state jail.

Sentencing occurred on January 8, 2016. The trial court signed the judgment on

January 13, 2016, and court costs were assessed that same day. Included in the

total costs of $289 assessed against Appellant were consolidated court costs of

$133. In one point, Appellant contends that section 133.102(a)(1) of the local

government code, the basis for the assessment of the consolidated court costs

against her,3 is facially unconstitutional because it violates the Separation of

Powers Clause of the Texas Constitution.4 Because we follow the Texas Court

of Criminal Appeals in rejecting Appellant’s grounds for holding the cost statute

facially unconstitutional, we affirm the trial court’s judgment.

      The State contends that Appellant did not preserve her complaint

challenging the facial constitutionality of the statute authorizing the imposition of

the consolidated court costs. Given the recent cases from the Texas Court of

Criminal Appeals stating that an appellant can raise complaints about costs—

including complaints about the constitutionality of the statutes authorizing those

costs—for the first time on appeal when the costs are not imposed in open court,

we shall address the merits of Appellant’s point.5


      3
          Tex. Loc. Gov’t Code Ann. § 133.102(a)(1) (West Supp. 2016).
      4
          See Tex. Const. art. II, § 1.
      5
       See London v. State, 490 S.W.3d 503, at 507–10 (Tex. Crim. App. 2016);
Johnson v. State, 423 S.W.3d 385, 390–91 (Tex. Crim. App. 2014); Machado v.
State, No. 02-15-00425-CR, 2016 WL 3960587, at *4 (Tex. App.—Fort Worth
July 21, 2016, pet. filed) (mem. op., not designated for publication) (addressing

                                           2
      Appellant    contends    that   the       consolidated   court   costs   are   an

unconstitutional tax under the Separation of Powers Clause because they are

neither necessary nor incidental to the trial of a criminal case. As Appellant

recognizes, the Texas Court of Criminal Appeals has already expressly rejected

the “necessary or incidental” standard upon which her argument is based.6 We

are bound by the precedent of the Texas Court of Criminal Appeals and therefore

decline to revisit the “necessary or incidental” standard.7

      We overrule Appellant’s sole point and affirm the trial court’s judgment.




issues despite State’s preservation arguments); Barefield v. State, No. 02-14-
00336-CR, 2016 WL 551890, at *1 & n.2 (Tex. App.—Fort Worth Feb. 11, 2016,
pet. ref’d) (mem. op., not designated for publication) (same). But see Waddell v.
State, No. 02-14-00372-CR, 2015 WL 7820272, at *1–2 (Tex. App.—Fort Worth
Dec. 3, 2015) (mem. op., not designated for publication) (overruling unpreserved
constitutional complaints about statutes authorizing costs as forfeited), rev’d, No.
PD-0014-16, 2016 WL 3625514, at *1 (Tex. Crim. App. June 29, 2016) (not
designated for publication); see also Amie v. State, Nos. 02-15-00385-CR, 02-
15-00386-CR, 2016 WL 741987, at *1 (Tex. App.—Fort Worth Feb. 25, 2016,
pet. filed) (mem. op., not designated for publication) (overruling Amie’s
unpreserved constitutional complaint about section 133.102 of local government
code as forfeited); 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) (same).
      6
        See Peraza v. State, 467 S.W.3d 508, 510, 521 (Tex. Crim. App. 2015),
cert. denied, 136 S. Ct. 1188 (2016); Machado, 2016 WL 3960587, at *4 (relying
on Peraza in addressing and overruling point raising same complaint about
different cost statute); Barefield, 2016 WL 551890, at *1 (same).
      7
       See Machado, 2016 WL 3960587, at *4; Haas v. State, Nos. 02-11-
00316-CR, 02-11-00317-CR, 2013 WL 362758, at *2 (Tex. App.—Fort Worth
Jan. 31, 2013, pet. ref’d) (mem. op., not designated for publication); Hailey v.
State, 413 S.W.3d 457, 489 (Tex. App.—Fort Worth 2012, pet. ref’d).


                                            3
                                        /s/ Lee Ann Dauphinot
                                        LEE ANN DAUPHINOT
                                        JUSTICE

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

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 26, 2016




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