             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________

           No. 02-17-00158-CR
      ___________________________

ANDRE DONOVAN PRESCOTT, Appellant

                     V.

           THE STATE OF TEXAS


    On Appeal from the 30th District Court
          Wichita County, Texas
         Trial Court No. 57,786-A


Before Sudderth, C.J.; Gabriel and Womack, JJ.
Memorandum Opinion by Chief Justice Sudderth
                          MEMORANDUM OPINION

                                   I. Introduction

      At around 10 p.m. on May 15, 2016, Wichita Falls Police Officer Michael

Simmons was dispatched in his marked patrol vehicle on a domestic dispute call that

was based on neighbors’ reports of hearing gunshots and things breaking in an

apartment.    When he arrived at the scene,1 Officer Simmons turned on the

microphone on his uniform, approached the apartment, and heard the sounds of a

disturbance—including what sounded like screaming—inside the apartment.             He

announced himself as a police officer and then kicked in the front door.

      When Officer Simmons entered the apartment, he saw Appellant Andre

Donovan Prescott holding onto a woman.               Officer Simmons unsuccessfully

attempted to detain Prescott by deploying his Taser from four or five feet away.

Prescott ran through the kitchen and jumped head-first through a closed window in

the bedroom, shattering the glass. Officer Simmons, opting not to follow Prescott

through the window, exited the apartment, and the police pursued Prescott until he

was taken into custody.

      Prescott was indicted and tried for the offense of evading arrest or detention

with a prior conviction for that offense, a state jail felony for which a jury found him

guilty and sentenced him to 24 months’ confinement. See Tex. Penal Code Ann.

      1
        Officer Simmons testified that he was wearing his uniform, a badge, and a duty
belt that held his handcuffs, firearm, Taser, pepper spray, and baton.


                                           2
§ 12.35 (providing that state jail punishment range is confinement from 180 days to

two years and up to a $10,000 fine), § 38.04(a), (b)(1) (providing that evading arrest is

a state jail felony if the actor has been previously convicted of evading arrest). 2

Prescott raises two issues in this appeal. We affirm as modified.

                                    II. Discussion

      In his two issues, Prescott argues that the trial court abused its discretion by

admitting one of his statements into evidence over his rule 410(b)(4) objection, and he

challenges some of the $439 in court costs assessed by the trial court in the judgment.

A. Rule 410(b)(4)

      We review a trial court’s decision to admit or exclude evidence for an abuse of

discretion. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016); McCarty v.

State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008). A trial court abuses its discretion

when the decision lies outside the zone of reasonable disagreement. Henley, 493

S.W.3d at 83.

      Rule of evidence 410(b)(4) provides that in a criminal case, evidence of “a

statement made during plea discussions with an attorney for the prosecuting authority

if the discussions did not result in a guilty or nolo contendere plea or they resulted in


      2
        Prescott’s former court-appointed appellate counsel filed a motion to
withdraw as counsel and a brief in support of that motion. See Anders v. California, 386
U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967). On September 13, 2018, we abated
this case for appointment of new counsel after completing our independent review of
the record and identifying a potentially arguable error. See id.


                                           3
a later-withdrawn guilty or nolo contendere plea” is not admissible.3 Tex. R. Evid.

410(b).    Our state rule of evidence 410(b) parallels the language in Federal Rule of

Evidence 410(a). Compare Tex. R. Evid. 410(b), with Fed. R. Evid. 410(a). “When a

Texas rule of evidence is patterned on a federal counterpart, we find it appropriate to

look to federal cases and commentary for guidance.” Bruton v. State, 428 S.W.3d 865,

873 (Tex. Crim. App. 2014). Accordingly, we look to the federal court’s interpretation

of rule 410. See id.

       The Fifth Circuit has observed that statements made by a defendant other than

in the course of plea negotiations do not come under the ambit of rule 410 and has

held that to determine whether a discussion should be characterized as a “plea

negotiation,” the trial court should carefully consider the totality of the circumstances

and apply a two-tiered analysis. United States v. Robertson, 582 F.2d 1356, 1365–66 (5th

Cir. 1978). First, the court must determine whether the accused exhibited an actual

subjective expectation to negotiate a plea at the time of the discussion. Id. at 1366.

The initial inquiry into the accused’s subjective state of mind must be made with care

to distinguish between those discussions in which he was merely making an admission

and those in which he was seeking to negotiate a plea agreement, i.e., seeking a

government concession. Id. at 1367, 1369. And then the court must determine

       There is an exception, not applicable here, for the admissibility of such a
       3

statement when another statement made during the same plea or plea discussions has
been introduced and in fairness the statements ought to be considered together. Tex.
R. Evid. 410(c).


                                           4
whether the accused’s subjective expectation was reasonable given the totality of the

objective circumstances. Id. at 1366; see also Monreal v. State, 947 S.W.2d 559, 567 n.4

(Tex. Crim. App. 1997) (Baird, J., concurring and dissenting) (citing Robertson, 582

F.2d at 1366).

      The trial court held a hearing outside the jury’s presence with regard to

Prescott’s statements at issue, which the State offered through its investigator Zane

Combes.

      [Prosecutor]: Essentially while the defense counsel was out of the room,
      the Defendant asked to speak with me. I said that would be fine as long
      as, you know, his defense counsel was okay with that. So I went out and
      talked to [defense counsel]. [Defense counsel], the Defendant, and
      myself and Mr. Combes all went across the hall to the lawyer’s lounge.

              As soon as we all sat down, [defense counsel] informed the
      Defendant that anything he said could be used against him. After that
      basically he just was asking me if I, you know, thought I had enough
      evidence in this case and just kind of general questions about that.
      Eventually at one point he ended up stating that he heard the officer announce
      police outside the door, and that afterward the police officer came through the door and
      without saying stop or get down or anything like that, that he tased him or attempted
      to shoot his taser at him. I believe that goes to the Defendant’s knowledge
      that it was a police officer who entered into the home and was
      attempting to detain him, and for that purpose, I intend to call Mr.
      Combes to testify. [Emphasis added.]

             ....

      [Defense counsel] . . . I believe it’s a bit of a mischaracterization as to
      exact[ly] how the conversation went. We were talking about the
      discovery that he received and he hears on the tape that I -- I heard on
      the tape the -- the -- the police officer yell police. And so, you know, I
      would say that it’s a mischaracterization of what happened. I would also
      say it’s probably more of a plea bargain negotiation[] trying to convince
      the prosecutor not to proceed with charges in this case, he wanted to try

                                                 5
      to do that personally. So it was an attempt to get the prosecutor to drop
      the charges as part of the plea bargain negotiation as a last ditch effort
      on his behalf to try to get the case dropped . . . .

      THE COURT: Anything else, [Prosecutor]?

      [Prosecutor]: I’ll just note that there was no discussion of plea bargain
      negotiations. The Defendant said he wanted to talk and that his
      attorney, first thing he said to him was that this can be used against you.
      And as far as the mischaracterization, [defense counsel] can cross-
      examine Mr. Combes about that, and it will be up to the jury to
      determine what it actually was.

The trial court stated that it would permit Combes’s testimony.

      Combes testified that prior to jury selection, Prescott asked if he could speak

with the prosecutor outside the presence of defense counsel.                    The prosecutor

responded that he would not be comfortable talking with Prescott outside of defense

counsel’s presence, so Combes, the prosecutor, Prescott, and Prescott’s defense

counsel went into the lawyer’s lounge, and as soon as they sat down, the first thing

Prescott’s defense counsel said to Prescott was that anything he said could be used

against him in court. Combes described the ensuing conversation as follows:

      We sat down and kind of gave the floor to Mr. Prescott, and he asked
      [the prosecutor] if he thought he had enough evidence for the case.
      [The prosecutor] simply said, yes, he did. From there they talked a little
      bit back and forth. I can’t remember the specific conversation. When
      [the prosecutor] said, well, I’m not gonna give you my case, you asked if
      I thought I had enough evidence, and I told you I did, and Mr. Prescott
      brought up the door being kicked in. [The prosecutor] said that, you
      know, it was announced police, and Mr. Prescott said, yes, I heard them say
      police, then he kicked my door in, and then just tased me. He didn’t tell me to get on
      the ground, he didn’t tell me to stop, he just tased me. [Emphasis added.]



                                                6
On cross-examination, Combes denied that anything had been said about a video and

what Prescott might have heard on it.

      In his first issue, Prescott complains that his statement regarding whether he

heard the officer announce “police” was made in the course of plea negotiations and

so should have been excluded under rule of evidence 410(b)(4) and that because he

did not testify at trial, the exception in rule of evidence 410(c) did not apply. The

State responds that the trial court did not abuse its discretion by overruling Prescott’s

rule 410(b)(4) objection because Prescott had no subjective expectation that his

statement was protected as part of plea-bargain negotiations and the conversation in

which he made the statement may not be objectively characterized as a plea-bargain

discussion.

      The record does not reflect that the parties were undergoing plea discussions

when Prescott made his statement. To the contrary, the record reflects that on

November 15, 2016, the State made a plea offer of 12 months’ confinement in state

jail and that around six months later, on March 14, 2017, jury selection began. The

next day, Combes was the last witness to testify in the case. Additionally, Prescott

was warned by his attorney before the conversation with the prosecutor that anything

he said could be used against him. Based on the record before us and the test set out

by the federal court, we cannot say that the trial court abused its discretion by

admitting Combes’s testimony over Prescott’s rule 410(b)(4) objection. The trial

court could have reasonably determined based on the hearing outside the jury’s

                                           7
presence and from Combes’s testimony that Prescott had no subjective expectation

that his statement was protected as part of plea-bargain negotiations. And the trial

court likewise could have reasonably concluded that the evidence did not objectively

show a plea-bargain discussion when Prescott did not offer to plead guilty in

exchange for anything during his conversation with the prosecutor. Accordingly, we

overrule Prescott’s first issue.

B. Costs in the Judgment and Bill of Costs

       The trial court signed the judgment of conviction on April 28, 2017, assessing

$439 in court costs in the judgment.

       On August 13, 2018, we ordered the record to be supplemented with an

itemized bill of costs. The bill of costs bears a statement that an “additional collection

fee of 25% of the amount of any fine, court costs, and restitution that is ordered to be

paid and is more than 60 days past due will also be accessed [sic]” and that an

“additional time payment fee of $25 will be assessed if any part of the fine, court

costs, or restitution is paid on or after the 31st day after the date the judgment

assessing the fine, court costs or restitution is entered.” The district clerk certified

that “the foregoing is a correct account of the court costs, fees and/or fines adjudged

against the defendant in the above entitled and numbered cause, up to this date,

AUGUST 21, 2018.”

       The bill of costs in the first supplemental clerk’s record reflects the following:



                                            8
      Because the abbreviations were not a model of clarity, we asked the clerk to

spell out the abbreviations, and on August 30, 2018, we received the following:




      The August 30, 2018 bill of costs contained the same additional collection

information about 25% for a 60-day-past-due bill and $25 for a 31-day-past-due bill


                                          9
and the same certification that the foregoing was “a correct account of the court

costs, fees and/or fines adjudged against the defendant in the above entitled and

numbered cause, up to this date, AUGUST 30, 2018.”

      In his second issue, Prescott states that it appears that the court costs were

assessed incorrectly in that “[i]nstead of assessing the consolidated costs of $133.00

under § 133.102(a)(1), [Wichita County] has assessed several fees that add up to the

$133 total and appear to have no other possible statutory bases other than

§ 133.102(a)(1),” i.e., State fees (STFEE, $80), Fugitive Apprehension Fund (FAF,

$5), Compensation Victim Crime Fund (CVCA, $45), Judicial Court Personnel

Training (JCPT, $2), Juvenile Crime (JDC, $0.50), and Correctional Management Inst.

(CMIT, $0.50). He asks us to retitle the $133 amount as “consolidated court costs”

with the correct list of costs provided under section 133.102(e).4 He also points out

that the $5.00 Fugitive Apprehension Fund (FAF) fee has no valid statutory basis

      4
        Section 133.102 lists the following accounts and funds set to receive a
percentage of the $133 consolidated fee for a felony conviction: (1) crime stoppers
assistance (0.2581%), (2) breath alcohol testing (0.5507%), (3) Bill Blackwood Law
Enforcement Management Institute (2.1683%), (4) law enforcement officers
standards and education (5.0034%), (5) law enforcement and custodial officer
supplemental retirement fund (11.1426%), (6) criminal justice planning (12.5537%),
(7) an account in the state treasury to be used only for the establishment and
operation of the Center for the Study and Prevention of Juvenile Crime and
Delinquency at Prairie View A&M University (1.2090%), (8) compensation to victims
of crime fund (37.6338%), (9) emergency radio infrastructure account (5.5094%), (10)
judicial and court personnel training fund (4.8362%), (11) an account in the state
treasury to be used for the establishment and operation of the Correctional
Management Institute of Texas Criminal Justice Center Account (1.2090%), and (12)
fair defense account (17.8448%). Tex. Loc. Gov’t Code Ann. § 133.102.


                                         10
when the local government code was amended in 2011 to eliminate that fee within the

consolidated $133 felony fee and that the clerk confused the Judicial Support Fee and

two jury fees (JSF1 and JSF2), requiring correction. See Johnson v. State, 423 S.W.3d

385, 389 (Tex. Crim. App. 2014) (requiring that only statutorily authorized court costs

be assessed against a criminal defendant (citing Tex. Code Crim. Proc. Ann. art.

103.002)). And he argues that 90% of the time payment fee ($22.50 of the $25

amount) is facially unconstitutional because it does not reimburse the county or State

for any expense incurred in connection with his criminal trial and because it is

allocated to the general revenue fund and not designated for any legitimate criminal

justice purpose.

       The State agrees that some of the costs assessed by the trial court are

mischaracterized, set forth incorrect amounts, or are not justified on the facts of the

case, including the $25 time payment fee. The State asks us to modify the bill of costs

to delete reference to the six itemized costs identified by Prescott—including the $5

FAF fee—and to replace them with the correct costs that comprise the $133

consolidated court costs under local government code section 133.102.5 Accordingly,

we sustain this portion of Prescott’s second issue in part, delete reference in the bill of

costs to the six itemized costs, and replace them with the standard $133 consolidated


       Prescott states, “[I]t appears that the title of the fee should be changed to
       5

‘consolidated court costs’” and that certain costs for which section 133.102(e)
provides a valid statutory basis should be added for accuracy.


                                            11
court costs permitted under local government code section 133.102. See Tex. Loc.

Gov’t Code Ann. § 133.102.

       Prescott points out that under local government code section 133.105(a), a $6

Judicial Support Fee may be assessed, while under code of criminal procedure article

102.0045, a $4 jury reimbursement fee may be assessed but that the bill of costs

instead reflects a $4 Judicial Support Fee and $6 for the jury reimbursement fee. He

asks us to modify the bill of costs to reflect the correct fee amounts. The State

acknowledges that Prescott is correct and asks us to modify the bill of costs so that it

reflects the correct fee imposition. Accordingly, we sustain this portion of Prescott’s

second issue and modify the bill of costs to reflect the correct imposition of fees: $6

for the Judicial Support Fee and $4 for the jury reimbursement fee.

       Finally, Prescott complains that the $25 time payment fee is facially

unconstitutional. The State replies that the trial court erred by imposing that cost

because the record does not support its imposition. Specifically, the State points out

that while local government code section 133.103 requires a convicted person to pay a

$25 fee if he “pays any part of a fine, court costs, or restitution on or after the 31st day

after the date on which a judgment is entered assessing the fine, court costs, or

restitution,” the trial court assessed the $25 cost as part of the $439 total amount of

costs in the judgment, before the condition triggering the assessment of the cost—late




                                            12
payment—could have occurred.6 [Emphasis added.] The State suggests that we

delete the $25 fee without reaching Prescott’s constitutionality argument.

       Because we may not determine the constitutionality of a statute unless that

determination is absolutely necessary to decide the case, see Salinas v. State, 464 S.W.3d

363, 366 (Tex. Crim. App. 2015), we sustain in part the remainder of Prescott’s

second issue, delete the $25 time payment fee as unsupported at the time the costs

were entered in the judgment, and accordingly do not reach Prescott’s

constitutionality argument. See id.; see also Tex. R. App. P. 47.1.

                                    III. Conclusion

       Having sustained part of Prescott’s second issue, we modify the bill of costs as

follows: (1) we replace the $133 listed in the bill of costs7 with the correct $133

consolidated court costs under local government code section 133.102; (2) we

substitute the correct amounts of $6 for the Judicial Support Fee and $4 for the jury


       6
        The State further argues that the record does not show whether Prescott has
timely paid any of the other costs assessed by the trial court. Based on the August 21
and August 30, 2018 bills of costs, and notwithstanding the clerk’s certifications on
both instruments, we agree. Both bills of cost mention additional late fees and when
they will be assessed, but both show the $439 amount assessed on April 28, 2017, and
reflect a balance of that same amount as of August 21 and 30, 2018, respectively.
Accordingly, and in light of the inaccuracies in the bills of costs in the record, we
cannot retroactively approve the $25 time payment fee.
       7
        This is the $133 set out in the bill of costs totaled from “State fees (STFEE,
$80), Fugitive Apprehension Fund (FAF, $5), Compensation Victim Crime Fund
(CVCA, $45), Judicial Court Personnel Training (JCPT, $2), Juvenile Crime (JDC,
$0.50), and Correctional Management Inst. (CMIT, $0.50).”


                                            13
reimbursement fee; and (3) we delete the unsupported $25 time payment fee, resulting

in $414 in court costs. Having overruled Prescott’s first issue and having not reached

the remainder of his second issue on the constitutionality of the time payment fee, we

affirm the trial court’s judgment as modified.



                                                    /s/ Bonnie Sudderth
                                                    Bonnie Sudderth
                                                    Chief Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: June 27, 2019




                                           14
