                                                                           PD-0312-15
                                                          COURT OF CRIMINAL APPEALS
                                                                          AUSTIN, TEXAS
                                                        Transmitted 5/22/2015 11:28:03 PM
                                                          Accepted 5/26/2015 10:44:55 AM
                                                                           ABEL ACOSTA
TO THE COURT OF CRIMINAL APPEALS OF TEXAS                                          CLERK


                         PD-0312-15
                _________________________________


                    ROBERT S. SHEARER,
                          Appellant
                             v.
                    THE STATE OF TEXAS,
                          Appellee

                _________________________________


   PETITION FOR DISCRETIONARY REVIEW
    _________________________________________________________

     On Petition for Discretionary Review from the Court of
     Appeals for the Tenth District, Waco, Texas in Cause No.
     10-14-00031-CR, dismissing Appellant’s appeal from the
     County Criminal Court No. 2 of Brazos County, Texas,
     Cause No. 5054-A..
    _________________________________________________________



                                         R. Scott Shearer
                                         TBA No. 00786464
                                         917 Franklin, Suite 320
                                         Houston, Texas 77002
     May 26, 2015                        (713) 254-5629
                                         (713) 224-2889 FAX
                                         ShearerLegal@Yahoo.com

                                         Appellant

                                         May 22, 2015

                                1
                                              SUBJECT INDEX
                                                                                                       Page

List of Authorities......................................................................................     4

Names of All Parties..................................................................................        5

Statement Regarding Oral Argument...........................................................                  6

Statement of the Case................................................................................         8

Statement of the Procedural History of the Case.........................................                      9

Question for Review Number One...............................................................                 10


QUESTION FOR REVIEW NUMBER ONE: Did the panel of the court of
appeals err by applying an incorrect standard of review regarding the punitive
nature of the assessment ordered paid in this case?

                                                     (Op. at 2)

Reasons for Review...................................................................................         10

Question for Review Number Two..............................................................                  11


QUESTION FOR REVIEW NUMBER TWO: Did the court of appeals deprive
Appellant of Due Process and Equal Protection of the law by holding that it had no
jurisdiction to decide this appeal?

                                                     (Op. at 2)


Reasons for Review...................................................................................         15

Argument and Authorities..........................................................................            16

Question for Review Number Three.............................................................                 20

                                                            2
QUESTION FOR REVIEW NUMBER THREE: Is the term “fine imposed” that
is contained within the statute conveying jurisdiction in a court of appeals of this
State sufficiently broad to include sums ordered paid as a “special expense”?

                                             (Op. at 2)
Reasons for Review...................................................................................   20

Argument and Authorities..........................................................................      21



Prayer for Relief………………………………………………………….                                                                22

Certificate of Service……………………………………………………..                                                            23

Certificate of Compliance………………………………………………..                                                           24

Appendix…………………………………………………………………                                                                       25




                                                         3
                                      LIST OF AUTHORITIES

                                                                                                            Page



CASES

Giaccio v. Pennsylvania, 382 U.S. 399, 402 (1966)............................. 10, 13, 15, 18

Griffin v. Illinois, 351 U.S. 12, 18 (1956) ....................................... 10, 14, 15, 19, 20

Rinaldi v. Yeager, 384 U.S. 305 (1966) ................................................ 10, 13, 15, 19

Weir v. State, 278 S.W.3d 364 (Tex. Cr. App. 2009) ....................................... 13, 18


STATUTES

TEX. CRIM. PROC. CODE ANN. art. 4.03 ....................................................................11

TEX. CRIM. PROC. CODE ANN. art. 45.051 ................................................................12


RULES

TEX. R. APP. PROC. 38.1(a) .........................................................................................5




                                                         4
                           NAMES OF ALL PARTIES

      In accordance with TEX. R. APP. PROC. 38.1(a), Appellant submits that the
following are interested parties:



      R. Scott Shearer -            Appellant.

      917 Franklin, Suite 320
      Houston, TX 77002

      Rodney W. Anderson -          Trial counsel for the State of Texas.

      Brazos County Attorney’s Office
      300 East 26th Street, Suite 1300
      Bryan, Texas 77803

      Spencer R. Giles-             Appellate counsel for the State of Texas.

      Brazos County Attorney’s Office
      300 East 26th Street, Suite 1300
      Bryan, Texas 77803

      Hon. James W. Locke -         Presiding judge of the Trial Court.

      300 E. 26th St., Suite 214
      Bryan, TX 77803




                                         5
            STATEMENT REGARDING ORAL ARGUMENT

     Appellant believes oral argument will be helpful. Appellant requests oral

argument.




                                     6
 TO THE COURT OF CRIMINAL APPEALS OF TEXAS

                                 PD-0312-15
                       _________________________________


                           ROBERT S. SHEARER,
                                 Appellant
                                    v.
                           THE STATE OF TEXAS,
                                 Appellee

                       _________________________________


        PETITION FOR DISCRETIONARY REVIEW
           _________________________________________________________

           On Petition for Discretionary Review from the Court of
           Appeals for the Tenth District, Waco, Texas in Cause No.
           10-14-00031-CR, dismissing Appellant’s appeal from the
           County Criminal Court No. 2 of Brazos County, Texas,
           Cause No. 5054-A..
           _________________________________________________________


TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:


      APPELLANT,        ROBERT       S.       SHEARER,   files   this   Petition   for

Discretionary Review. In support of his request for review, Appellant would

respectfully show the Court the following:



                                          7
                          STATEMENT OF THE CASE


      This appeal stems from Appellant’s conviction in State of Texas v. Robert S.

Shearer for the offense of speeding. The case was originally filed in a justice of

the peace court and then appealed de novo to County Court at Law No. 2. On

December 19, 2013, the trial court assessed punishment at six months deferred

adjudication probation a $200.00 special expense fee and $204.10 in court costs.

(Appendix 1). The Appellant perfected his appeal when he filed a timely notice on

January 30, 2014. This Court dismissed Appellant’s appeal in a memorandum

opinion dated January 15, 2015. (Appendix 2). Appellant filed a timely motion

for rehearing, which was overruled on February 19, 2015.




___________________________________________________________
*    The record on petition for discretionary review is cited as follows:


Op. at p    .......... Opinion at page p.


                                            8
     STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE



      In an UNPUBLISHED opinion delivered January 15, 2015, a panel of the

Tenth Court of Appeals DISMISSED Appellant’s appeal from the County Court

No. 2 of Brazos County, Texas. The Appellant filed a motion for rehearing, which

was overruled on February 19, 2015. The Appellant’s Petition for Discretionary

Review was due on March 17, 2015. Appellant filed a Motion for Extension of

Time to File Petition for Discretionary Review, which was granted. Appellant’s

Petition for Discretionary Review is due May 22, 2015.




                                        9
                           GROUNDS FOR REVIEW



QUESTION FOR REVIEW NUMBER ONE: Did the panel of the court of
appeals err by applying an incorrect standard of review regarding the punitive
nature of the assessment ordered paid in this case?

                                      (Op. at 2)



Reasons for Review:


1.     The panel decision of the Tenth Court of Appeals requires review because
the court decided an important question of state law that that is in conflict with the
applicable decisions of the United States Supreme Court. The panel decision is in
conflict with the Supreme Court’s decisions in Griffin v. Illinois, 351 U.S. 12, 18
(1956); Rinaldi v. Yeager, 384 U.S. 305, 310 (1966); and Giaccio v. Pennsylvania,
382 U.S. 399, 402 (1966).

2.     The panel decision of the First Court of Appeals requires review because the
court has misconstrued TEX. CRIM. PROC. CODE Ann. articles 4.03 and 45.051.

3.    The panel decision of the Court of Appeals requires review because the court
of appeals has decided an important question of state law, which has not been, but
should be settled by this Court.

4.    The panel decision of the Court of Appeals requires review because the court
of appeals has so far departed from the accepted and usual course of judicial
proceedings as to call for an exercise of this Court’s powers of supervision.




                                          10
Argument and Authorities:



      In its opinion of January 15, 2015, Appellant submits the panel fell into error

when it misapplied and misconstrued TEX. CRIM. PROC. CODE ANN. articles 4.03

and 45.051. Article 4.03 provides as follows:



      Article 4.03. Courts Of Appeals The Courts of Appeals shall have
      appellate jurisdiction coextensive with the limits of their respective
      districts in all criminal cases except those in which the death penalty
      has been assessed. This Article shall not be so construed as to
      embrace any case which has been appealed from any inferior
      court to the county court, the county criminal court, or county
      court at law, in which the fine imposed or affirmed by the county
      court, the county criminal court or county court at law does not
      exceed one hundred dollars, unless the sole issue is the
      constitutionality of the statute or ordinance on which the conviction is
      based.

TEX. CRIM. PROC. CODE ANN. art. 4.03 (West Supp. 2014)(emphasis added)



      The judgment in this case indicates that Appellant was assessed a two-

hundred dollar [$200.00] “Special Expense”. Special expenses are governed by

Article 45.051 of the Texas Code of Criminal Procedure. Article 45.051 provides,

in pertinent part, as follows:




                                         11
      Article 45.051. Suspension Of Sentence And Deferral Of Final
      Disposition        (a) On a plea of guilty or nolo contendere by a
      defendant or on a finding of guilt in a misdemeanor case punishable
      by fine only and payment of all court costs, the judge may defer
      further proceedings without entering an adjudication of guilt and
      place the defendant on probation for a period not to exceed 180
      days. In issuing the order of deferral, the judge may impose a
      special expense fee on the defendant in an amount not to exceed
      the amount of the fine that could be imposed on the defendant as
      punishment for the offense. The special expense fee may be
      collected at any time before the date on which the period of probation
      ends. The judge may elect not to impose the special expense fee for
      good cause shown by the defendant. If the judge orders the
      collection of a special expense fee, the judge shall require that the
      amount of the special expense fee be credited toward the payment
      of the amount of the fine imposed by the judge.


TEX. CRIM. PROC. CODE ANN. art. 45.051. (emphasis added).


      Appellant was sentenced to a “special expense” in the amount of $200.00

and not to any term of probation. Article 45.051 plainly states that any such

“special expense” be credited toward the fine. Id.

      The United States Supreme Court has held that it is the nature of the

deprivation that controls, not the label that the State chooses to give it:



      Both liberty and property are specifically protected by the Fourteenth
      Amendment against any state deprivation which does not meet the
      standards of due process, and this protection is not to be avoided by
      the simple label a State chooses to fasten upon its conduct or its
      statute.


                                           12
Giaccio v. Pennsylvania, 382 U.S. 399, 402, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966).



      In the present case, Appellant was ordered deprived of $200.00 as a “special

expense”, which was in reality a fine. Furthermore, a “special expense” that has

been imposed is required to offset a fine under Article 45.051.          This clearly

indicates the punitive nature of the $200.00 assessment and distinguishes it from a

court cost. See Weir v. State, 278 S.W.3d 364, 402 n. 5 (Tex. Cr. App. 2009)

(“This could be read as an indication that the Legislature has intended to treat fines

and costs similarly for sentencing purposes. We decline to so construe Article

42.15, instead construing it as treating fines and costs similarly only in terms of

where they are to be paid.”).

       Regardless of the label, Appellant was ordered to pay a punitive assessment

in an amount greater than $100.00.          The court of appeals, therefore, had

jurisdiction over Appellant’s appeal from county court and the panel erred by

dismissing this appeal. Refusing Appellant the right of appellate review in this

circumstance deprives him of both Due Process of Law and Equal Protection of the

Law under the United States Constitution. See Rinaldi v. Yeager, 384 U.S. 305,

310 (1966) (“This Court has never held that the States are required to establish

avenues of appellate review, but it is now fundamental that, once established, these



                                          13
avenues must be kept free of unreasoned distinctions that can only impede open

and equal access to the courts”); Griffin v. Illinois, 351 U.S. 12, 18 (1956).




                                           14
QUESTION FOR REVIEW NUMBER TWO: Did the court of appeals deprive
Appellant of Due Process and Equal Protection of the law by holding that it had no
jurisdiction to decide this appeal?

                                      (Op. at 2)


Reasons for Review:


1.     The panel decision of the Tenth Court of Appeals requires review because
the court decided an important question of state law that that is in conflict with the
applicable decisions of the United States Supreme Court. The panel decision is in
conflict with the Supreme Court’s decisions in Griffin v. Illinois, 351 U.S. 12, 18
(1956); Rinaldi v. Yeager, 384 U.S. 305, 310 (1966); and Giaccio v. Pennsylvania,
382 U.S. 399, 402 (1966).

2.     The panel decision of the First Court of Appeals requires review because the
court has misconstrued TEX. CRIM. PROC. CODE Ann. articles 4.03 and 45.051.

3.    The panel decision of the Court of Appeals requires review because the court
of appeals has decided an important question of state law, which has not been, but
should be settled by this Court.

4.    The panel decision of the Court of Appeals requires review because the court
of appeals has so far departed from the accepted and usual course of judicial
proceedings as to call for an exercise of this Court’s powers of supervision.




                                          15
Argument and Authorities:


      In its opinion of January 15, 2015, Appellant submits the panel fell into error

when it dismissed Appellant’s appeal under TEX. CRIM. PROC. CODE ANN. articles

4.03 and 45.051. Article 4.03 provides as follows:



      Article 4.03. Courts Of Appeals The Courts of Appeals shall have
      appellate jurisdiction coextensive with the limits of their respective
      districts in all criminal cases except those in which the death penalty
      has been assessed. This Article shall not be so construed as to
      embrace any case which has been appealed from any inferior
      court to the county court, the county criminal court, or county
      court at law, in which the fine imposed or affirmed by the county
      court, the county criminal court or county court at law does not
      exceed one hundred dollars, unless the sole issue is the
      constitutionality of the statute or ordinance on which the conviction is
      based.

TEX. CRIM. PROC. CODE ANN. art. 4.03 (West Supp. 2014)(emphasis added)



      The judgment in this case indicates that Appellant was assessed a two-

hundred dollar [$200.00] “Special Expense”. Special expenses are governed by

Article 45.051 of the Texas Code of Criminal Procedure. Article 45.051 provides,

in pertinent part, as follows:




                                         16
      Article 45.051. Suspension Of Sentence And Deferral Of Final
      Disposition        (a) On a plea of guilty or nolo contendere by a
      defendant or on a finding of guilt in a misdemeanor case punishable
      by fine only and payment of all court costs, the judge may defer
      further proceedings without entering an adjudication of guilt and
      place the defendant on probation for a period not to exceed 180
      days. In issuing the order of deferral, the judge may impose a
      special expense fee on the defendant in an amount not to exceed
      the amount of the fine that could be imposed on the defendant as
      punishment for the offense. The special expense fee may be
      collected at any time before the date on which the period of probation
      ends. The judge may elect not to impose the special expense fee for
      good cause shown by the defendant. If the judge orders the
      collection of a special expense fee, the judge shall require that the
      amount of the special expense fee be credited toward the payment
      of the amount of the fine imposed by the judge.


TEX. CRIM. PROC. CODE ANN. art. 45.051. (emphasis added).


      Appellant was sentenced to a “special expense” in the amount of $200.00

and not to any term of probation. Article 45.051 plainly states that any such

“special expense” be credited toward the fine. Id.

      The United States Supreme Court has held that it is the nature of the

deprivation that controls, not the label that the State chooses to give it:



      Both liberty and property are specifically protected by the Fourteenth
      Amendment against any state deprivation which does not meet the
      standards of due process, and this protection is not to be avoided by


                                           17
      the simple label a State chooses to fasten upon its conduct or its
      statute.


Giaccio v. Pennsylvania, 382 U.S. 399, 402, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966).



      In the present case, Appellant was ordered deprived of $200.00 as a “special

expense”, which was in reality a fine. Furthermore, a “special expense” that has

been imposed is required to offset a fine under Article 45.051.          This clearly

indicates the punitive nature of the $200.00 assessment and distinguishes it from a

court cost. See Weir v. State, 278 S.W.3d 364, 402 n. 5 (Tex. Cr. App. 2009)

(“This could be read as an indication that the Legislature has intended to treat fines

and costs similarly for sentencing purposes. We decline to so construe Article

42.15, instead construing it as treating fines and costs similarly only in terms of

where they are to be paid.”).

       Regardless of the label, Appellant was ordered to pay a punitive assessment

in an amount greater than $100.00.          The court of appeals, therefore, had

jurisdiction over Appellant’s appeal from county court and the panel erred by

dismissing this appeal. Refusing Appellant the right of appellate review in this

circumstance deprives him of both Due Process of Law and Equal Protection of the

Law under the United States Constitution. See Rinaldi v. Yeager, 384 U.S. 305,

310 (1966) (“This Court has never held that the States are required to establish

                                          18
avenues of appellate review, but it is now fundamental that, once established, these

avenues must be kept free of unreasoned distinctions that can only impede open

and equal access to the courts”); Griffin v. Illinois, 351 U.S. 12, 18 (1956).




                                           19
QUESTION FOR REVIEW NUMBER THREE: Is the term “fine imposed” that
is contained within the statute conveying jurisdiction in a court of appeals of this
State sufficiently broad to include sums ordered paid as a “special expense”?

                                      (Op. at 2)


Reasons for Review:


1.     The panel decision of the Tenth Court of Appeals requires review because
the court decided an important question of state law that that is in conflict with the
applicable decisions of the United States Supreme Court. The panel decision is in
conflict with the Supreme Court’s decisions in Griffin v. Illinois, 351 U.S. 12, 18
(1956); Rinaldi v. Yeager, 384 U.S. 305, 310 (1966); and Giaccio v. Pennsylvania,
382 U.S. 399, 402 (1966).

2.     The panel decision of the First Court of Appeals requires review because the
court has misconstrued TEX. CRIM. PROC. CODE Ann. articles 4.03 and 45.051.

3.    The panel decision of the Court of Appeals requires review because the court
of appeals has decided an important question of state law, which has not been, but
should be settled by this Court.

4.    The panel decision of the Court of Appeals requires review because the court
of appeals has so far departed from the accepted and usual course of judicial
proceedings as to call for an exercise of this Court’s powers of supervision.




                                          20
Argument and Authorities:



      The term “fine imposed” contained within article 4.04 of the code of

criminal procedures is sufficiently panoptic to include those monies required to be

paid as a “special expense” under article 45.051 of the code of criminal procedure.

Evidence of this construction is supported by the fact that the statute itself requires

that any such “special expense” be credited toward the fine. Additionally, the

statute conveying jurisdiction upon the court of appeals for cases involving fines

exceeding $100.00 has been on the books since 1965.             It is likely that this

jurisdictional language predates the term “special expense” found within Article

45.051 by decades.




                                          21
                           PRAYER FOR RELIEF


      FOR THESE REASONS, Appellant respectfully asks this Court to grant
review of the decision of the court of appeals. Appellant further prays that this
Court will reverse the judgment of the court of appeals.


                                                  Respectfully submitted,


                                            By:   /s/ R. SCOTT SHEARER
                                                  R. Scott Shearer
                                                  TBA No. 00786464
                                                  917 Franklin, Suite 320
                                                  Houston, Texas 77002
                                                  (713) 254-5629
                                                  (713) 224-2889 FAX
                                                  ShearerLegal@Yahoo.com

                                                  Attorney for Appellant

                                                  May 22, 2015




                                       22
                        CERTIFICATE OF SERVICE


       I certify that a copy of this Petition for Discretionary Review has been
served upon the State of Texas by e-mailing a copy of same to the following
parties at their respective addresses on this the 22nd day of May, 2015:


BRAZOS COUNTY ATTORNEY’S OFFICE
300 E. 26TH STREET, SUITE 1300
BRYAN, TX 77803



                                                /s/ R. SCOTT SHEARER
                                                R. Scott Shearer




                                      23
        CERTIFICATE OF COMPLIANCE WITH RULE 9.4(i)(3)

          Certificate of Compliance with Type-Volume Limitations
                         and Typeface Requirements.


1.   This Petition for Discretionary Review complies with the type-volume
     limitation of TEX. R. APP. PROC. 9.4(i)(2)(D) and (3) because:


          This Petition for Discretionary Review contains 2,307
          words, excluding the parts of the Petition for
          Discretionary Review exempted by TEX. R. APP. PROC.
          9.4(i)(1).


2.   This Petition for Discretionary Review complies with the typeface
     requirements of TEX. R. APP. PROC. 9.4(e) because:


          this Petition for Discretionary Review has been prepared
          in a conventional proportionally spaced typeface using
          Microsoft WORD 97 version 7.0 in Times New Roman
          14 point type.




                                               /s/R. SCOTT SHEARER
                                               R. Scott Shearer




                                     24
APPENDIX 1




    25
APPENDIX 2




    26
                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-14-00031-CR

ROBERT SCOTT SHEARER,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                      From the County Court at Law No. 2
                             Brazos County, Texas
                            Trial Court No. 5054-A


                          MEMORANDUM OPINION

        In this matter, appellant, Robert Scott Shearer, appeals a County Court at Law

judgment in a trial de novo pertaining to a speeding ticket. In a letter dated December

17, 2014, this Court questioned its jurisdiction in this case, especially considering that

theunderlying judgment did not appear to impose a fine or affirm a fine in excess of

$100.   See TEX. CODE CRIM. PROC. ANN. art. 4.03 (West Supp. 2014).          We warned

appellant that this appeal would be dismissed unless a response was filed within seven

days of our December 17, 2014 letter adequately explaining why this Court has
jurisdiction over this appeal. To date, appellant has not responded to our December 17,

2014 letter.1

        Under these circumstances, we conclude that the record demonstrates that

appellant does not intend to pursue this appeal.                   Therefore, under our inherent

authority, we dismiss this cause for want of prosecution. See Ealy v. State, 222 S.W.3d

744, 745 (Tex. App.—Waco 2007, no pet.) (citing Peralta v. State, 82 S.W.3d 724, 725-26

(Tex. App.—Waco 2002, no pet.)); see also Evans v. State, No. 10-09-00251-CR, 2010 Tex.

App. LEXIS 546, at *3 (Tex. App.—Waco Jan. 27, 2010, no pet.) (mem. op., not

designated for publication). This cause is hereby dismissed.2



                                                         AL SCOGGINS
                                                         Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Dismissed
Opinion delivered and filed January 15, 2015
Do not publish
[CR25]




        1In fact, throughout the process, appellant has only filed one thing with this Court—a motion for
extension of time to file a late brief that has not yet been filed.

        2 A motion for rehearing may be filed within 15 days after the judgment or order of this Court is
rendered. See TEX. R. APP. P. 49.1. If appellant desires to have the decision of this Court reviewed by
filing a petition for discretionary review, that petition must be filed in the Court of Criminal Appeals
within 30 days after either the day the court of appeals’ judgment was rendered or the day the last timely
motion for rehearing was overruled by the court of appeals. See id. at R. 68.2(a).

Shearer v. State                                                                                   Page 2
Shearer v. State   Page 3
