                                                                              ACCEPTED
                                                                          01-12-00647-CR
                                                               FIRST COURT OF APPEALS
                                                                       HOUSTON, TEXAS
                                                                    11/10/2015 8:05:53 PM
                 No. 01-12-00647-CR                                 CHRISTOPHER PRINE
                                                                                   CLERK


                          In the
                    Court of Appeals
                         For the                        FILED IN
                                                 1st COURT OF APPEALS
                 First District of Texas             HOUSTON, TEXAS
                       At Houston                11/10/2015 8:05:53 PM
               ♦                       CHRISTOPHER A. PRINE
                                                          Clerk
                       No. 1247950
               In the 174th District Court
                Of Harris County, Texas
               ♦

    CARLTON CHARLES PENRIGHT
                        Appellant
                           V.
          THE STATE OF TEXAS
                        Appellee

               ♦

STATE’S COURT-ORDERED RESPONSE TO APPELLANT’S
         MOTION FOR REHEARING EN BANC
               ♦

                                    DEVON ANDERSON
                                    District Attorney
                                    Harris County, Texas

                                    JESSICA AKINS
                                    Assistant District Attorney
                                    Harris County, Texas
                                    State Bar Number: 24029415
                                    akins_jessica@dao.hctx.net


                                    H. C. Criminal Justice Center
                                    1201 Franklin, Suite 600
                                    Houston, Texas 77002
                                    Telephone: 713.274.5826
                                               INDEX OF AUTHORITIES

CASES

Cardenas v. State,
  423 S.W.3d 396 (Tex. Crim. App. 2014) ....................................................................................... 6
Hearne v. State,
  415 S.W.3d 365 (Tex. App.—
  Houston [1st Dist.] 2013, pet. ref’d) ............................................................................................... 7
Penright v. State,
  No. 01-12-00647-CR, 2015 WL 5770006
  (Tex. App.—Houston [1st Dist.] Sept. 29, 2015 no pet. h.) ................................................. 1, 4
Peraza v. State,
  467 S.W.3d 508 (Tex. Crim. App. 2015) ....................................................................................... 3
Salinas v. State,
  464 S.W.3d 363 (Tex. Crim. App. 2015) .................................................................................. 2, 4
State v. Rosseau,
   396 S.W3d 550 (Tex. Crim. App. 2013) ........................................................................................ 3
Thomas v. State,
  445 S.W.3d 28 (Tex. App.—
  Houston [1st Dist.] 2013, no pet.) ................................................................................................... 5

STATUTES

TEX. CODE CRIM. PROC. ANN.
  art. 102.011 (West 2013) ............................................................................................................... 4, 5
TEX. CODE CRIM. PROC. ANN.
  art. 102.011(a)(1) (West 2013)......................................................................................................... 4
TEX. CODE CRIM. PROC. ANN.
  art. 102.011(a)(6) (West 2013) .................................................................................................... 4, 5
TEX. CODE CRIM. PROC. ANN.
  art. 103.008 (West 2013) ................................................................................................................... 6
TEX. LOCAL GOV’T CODE ANN.
  §133.102(a)(1) (West 2013) ...............................................................................................................2
TEX. LOCAL GOV’T CODE ANN.
§133.102(e) (West 2013) ......................................................................................................................... 3
TO THE HONORABLE COURT OF APPEALS:

                               PROCEDURAL HISTORY

       Appellant was charged by indictment with the offense of aggravated sexual

assault. (CR 14). The jury found appellant guilty of the lesser offense of sexual

assault. (CR 154). The jury sentenced appellant to 15 years confinement in the

Institutional Division of the Texas Department of Criminal Justice. (CR 167, 170).

       Appellant filed a motion for new trial and on appeal alleged only errors

regarding his court costs, specifically attacking the $133 consolidated court cost

and a $15 sheriff’s fee. (RR MNT 1-15). This Court overruled his court costs

claims in a published opinion on September 29, 2015. See Penright v. State, No. 01-12-

00647-CR, 2015 WL 5770006 (Tex. App.—Houston [1st Dist.] Sept. 29, 2015 no

pet. h.).

       Appellant filed a motion for rehearing en banc claiming the Court of

Appeals erred in their analysis. The Court then ordered the State to respond.

                        ♦


            REPLY TO APPELLANT’S MOTION FOR REHEARING

       In two grounds for rehearing, appellant complains this Court erred by

holding the consolidated court cost was constitutional and finding the bill of costs

supported the sheriff’s fee.
Costs of Court

       The initial judgment in this case reflects an assessment of court costs in the

amount of $534; a second judgment reflects court costs in the amount of $484,

which includes a $133 consolidated court cost and a $15 sheriff’s fee. (CR 170, 173).

An initial bill of costs was filed, and then a supplemental bill of cost was filed.

(CR 192-193, 194-195).

Consolidated Court Cost

       Both the Texas Code of Criminal Procedure and the Texas Local

Government Code contain provisions authorizing court costs in criminal cases.

Section 133.102(a) of the Local Government Code authorizes a court cost in the

amount of $133 when a person is convicted of a felony offense. See TEX. LOCAL

GOV’T CODE ANN. §133.102(a)(1) (West 2013). Appellant’s court costs include the

fee for $133, and he challenged the constitutionality of that fee, complaining it was

essentially a tax. This Court properly overruled his claim.

       On rehearing, he complains this Court erred by failing to explain how the

comprehensive rehabilitation fund contained in the consolidated court cost was a

legitimate court cost and failed to consider each fund individually. But this is not

required. The Court of Criminal Appeals recently held that requiring evidence of

what the designated funds actually do is improper in a facial challenge to the

statute. Salinas v. State, 464 S.W.3d 363, 368 (Tex. Crim. App. 2015).


                                          2
       Further, the Court of Criminal Appeals decided Peraza, reiterating under a

facial constitutional challenge, courts consider the statute only as it is written,

rather than how is operates in practice. See Peraza v. State, 467 S.W.3d 508, 515

(Tex. Crim. App. 2015) (DNA record fee is not an unconstitutional tax). The

defendant in Peraza similarly argued the DNA record fee was an unconstitutional

tax based upon the disbursement of the fee after collection, including portions to

the state highway fund and criminal justice planning account. Id. Disagreeing

with this Court’s lower opinion, the Court of Criminal Appeals noted a statute is

not facially unconstitutional because there might potentially be some remote

circumstance in which it may be applied unconstitutionally; rather, a statute is

facially unconstitutional “only if it ‘always operates unconstitutionally in all

possible circumstances.’” Id. at 516 (quoting State v. Rosseau, 396 S.W3d 550, 556

(Tex. Crim. App. 2013)).

      The Peraza Court set forth a new test, and going forward the question is

whether the allocation of court costs assessed is to be expended for “legitimate

criminal justice purposes,” defined as “one that relates to the administration of our

criminal justice system.” Peraza, 467 S.W.3d at 517. Under subsection (e) of

Section 133.102, every single fund or account can be labeled as a “legitimate

criminal justice purpose” “related to the administration of our criminal justice

system.” See TEX. LOCAL GOV’T CODE ANN. §133.102(e) (West 2013). This includes


                                         3
the comprehensive rehabilitation fund. Clearly, rehabilitation is a legitimate

criminal justice purpose. See Penright, 2015 WL 5770006 at *4. To argue otherwise

defies common sense. Appellant’s focus on where the funds might actually go is

irrelevant. This Court is to “consider only how the statute is written, not how it

operates in practice.” See Salinas, 464 S.W.3d at 368. Appellant has incorrectly

asserted it is this Court’s duty to assess each fund, rather than his burden to

demonstrate the statute operates unconstitutionally in all circumstances.

Sheriff’s Fee

       Appellant was initially assessed a $65 sheriff’s fee, which was later

corrected to reflect the accurate amount of $15; this explains why his total court

costs were lowered by $50, from $ 534 to $484. (CR 170, 173, 192-193, 194-195).

       The $15 sheriff’s fee is derived from the court costs set out in the Texas Code

of Criminal Procedure. Article 102.011 outlines several fees that may be assessed

for the services of a police officer. TEX. CODE CRIM. PROC. ANN. art. 102.011 (West

2013). Article 102.011(a)(1) sets out that a defendant convicted of a felony shall pay

a $5 fee when an officer makes an arrest without a warrant. TEX. CODE CRIM.

PROC. ANN. art. 102.011(a)(1) (West 2013). Article 102.011(a)(6) sets out that a

defendant convicted of a felony shall pay $5 for commitment or release. TEX. CODE

CRIM. PROC. ANN. art. 102.011(a)(6) (West 2013).




                                          4
      The record demonstrates that appellant was arrested without a warrant on

January 14, 2010, supporting the $5 fee for arrest without a warrant under Article

102.011(a)(1). (CR 3). See TEX. CODE CRIM. PROC. ANN. art. 102.011 (West 2013).

The record also demonstrates that appellant was committed to the Harris County

Jail, pending trial, which supports one $5 fee under Article 102.011(a)(6), and then

he was committed to TDCJ after his conviction, supporting a second $5 fee for

commitment. (CR 3, 173-174). See TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(6)

(West 2013). Thus, the record supports his $15 sheriff’s fee. See Thomas v. State, 445

S.W.3d 28 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (factual evidence in the

record can support an assessment of a sheriff’s fee – in this case, $5 for

commitment and $5 for release).

       On rehearing, appellant argues that because he presented evidence at the

hearing on his motion for new trial disputing these fees, this Court erred by

overruling his point of error.

      First, contrary to his assertion, appellant did not present factual evidence

disputing the sheriff’s fees. He presented an affidavit from a custodian of records

at the Harris County Sheriff’s Office (HCSO) that indicated they do not create

records that are a statement of each cost charged in a criminal action. (RR MNT 5;

MNT Defense Exhibit Number 6). Appellant seems to parlay this fact into a




                                          5
smoking gun that he doesn’t owe the fees. But failing to keep a record is not

evidence the fee was never owed.

      Second, appellant conceded at the hearing on the motion for new trial that

the proper vehicle to challenge errors in court costs is through Article 103.008.

(RR MNT 12). See Cardenas v. State, 423 S.W.3d 396 (Tex. Crim. App. 2014); TEX.

CODE CRIM. PROC. ANN. art. 103.008 (West 2013) (on the filing of a motion by a

defendant not later than one year after the date of the final disposition of a case in

which costs were imposed, the court in which the case is pending or was last

pending shall correct any error in the costs).

      The trial court was authorized to assess the sheriff’s fee of $15; the record in

this case supports this Court’s conclusion.




                                          6
                                  CONCLUSION

      The Court’s opinion in this case is solid. And more importantly, consistent

with recent decisions by the Court of Criminal Appeals. There is no valid reason

to entertain appellant’s motion for rehearing. To date, this case has been pending

for over 5 years, including an abatement for defense counsel to further explore

court cost issues in a motion for new trial. See Hearne v. State, 415 S.W.3d 365, 368-

370 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (Keyes, J., concurring)

(expressing frustration with repeated court costs claims on appeal when there is

now settled authority on the issue, and without any regard to the merits of the

defendant’s case on appeal – conviction or punishment).

      The State respectfully requests this Court deny appellant’s motion for

rehearing en banc.

                                                    DEVON ANDERSON
                                                    District Attorney
                                                    Harris County, Texas


                                                    Jessica Akins

                                                    JESSICA AKINS
                                                    Assistant District Attorney
                                                    Harris County, Texas
                                                    1201 Franklin, Suite 600
                                                    Houston, Texas 77002
                                                    (713) 274-5826
                                                    State Bar Number: 24029415
                                                    akins_jessica@dao.hctx.net


                                          7
                         CERTIFICATE OF SERVICE


      This is to certify that a copy of the foregoing instrument has been sent to

appellant’s attorney at the following address on November 10, 2015:

      Jani Maselli
      Assistant Public Defender
      Harris County, Texas
      1201 Franklin, 13th Floor
      Houston, Texas 77002
      jani.maselli@pdo.hctx.net
                                                  Jessica Akins

                                                  JESSICA AKINS
                                                  Assistant District Attorney
                                                  Harris County, Texas
                                                  1201 Franklin, Suite 600
                                                  Houston, Texas 77002
                                                  (713) 274-5826
                                                  State Bar Number: 24029415
                                                  akins_jessica@dao.hctx.net

                      CERTIFICATE OF COMPLIANCE

      This is to certify that this computer-generated document has a word count
of 1777 words, based upon the representation provided by the word processing
program that was used to create the document.


                                                  Jessica Akins


                                                  JESSICA AKINS
                                                  Assistant District Attorney
                                                  Harris County, Texas



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