                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-18-00269-CR

D'WARREN LAMAR SIMMONS,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 19th District Court
                            McLennan County, Texas
                           Trial Court No. 2015-1825-C1


                                     OPINION


      In three issues, appellant, D’Warren Lamar Simmons, challenges his conviction for

assault family violence with a prior conviction for assault family violence. See TEX. PENAL

CODE ANN. § 22.01(a)(1), (b)(2)(A). (West 2019). Specifically, Simmons contends that: (1)

the trial court abused its discretion by excluding recorded statements made by the

complainant, Selsa Herrera; (2) the trial court failed to properly instruct the jury
regarding the charged offense; and (3) the court cost imposed for the time-payment fee is

unconstitutional. We affirm as modified.

                             I.   HERRERA’S RECORDED STATEMENTS

       In his first issue, Simmons argues that the trial court abused its discretion by

excluding recorded statements Herrera gave to the District Attorney’s office in which she

admitted to lying to the police and stating that someone other than Simmons actually

assaulted her. Simmons asserts that the statements should have been admitted because

they are against Herrera’s penal interest and exposed her to criminal liability for making

a false police report, and because the statements were sufficiently corroborated. We

disagree.

A.     Standard of Review

       A trial court is given broad discretion in determining the admissibility of evidence.

Allridge v. State, 850 S.W.2d 471, 492 (Tex. Crim. App. 1991). As such, we review a trial

court’s admission or exclusion of evidence under an abuse-of-discretion standard.

Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A reviewing court should

not reverse a trial court’s ruling on the admissibility of evidence that falls within the

“zone of reasonable disagreement.” Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.

App. 1990) (op. on reh’g).

B.     Discussion




Simmons v. State                                                                      Page 2
       At trial, Simmons proffered Herrera’s recorded statements under the statement-

against-interest exception to the hearsay rule outlined in Texas Rule of Evidence 803(24),

which defines a statement against interest as,

       A statement that:

             (A) a reasonable person in the declarant’s position would have made
                 only if the person believed it to be true because, when made, it was
                 so contrary to the declarant’s proprietary or pecuniary interest or
                 had so great a tendency to invalidate the declarant’s claim against
                 someone else or to expose the declarant to civil or criminal liability
                 or to make the declarant an object of hatred, ridicule, or disgrace; and

             (B) is supported by corroborating circumstances that clearly indicate its
                 trustworthiness, if it is offered in a criminal case as one that tends to
                 expose the declarant to criminal liability.

TEX. R. EVID. 803(24).

       Much of the arguments at trial and on appeal center on subsection (B) of Rule

803(24)—the corroboration requirement.1 Simmons admits in his brief that he offered no

independent evidence to corroborate Herrera’s recorded statements. However, Simmons

contends that the circumstances surrounding the statements render the statements self-

corroborating.

       The Court of Criminal Appeals has listed a number of factors that are relevant

when considering the trustworthiness of an inculpatory statement made by a declarant,

including,




       1   It is undisputed on appeal that the recorded statements made by Herrera are self-inculpatory.

Simmons v. State                                                                                    Page 3
           (1) whether the guilt of the declarant is inconsistent with the guilt of the
           defendant; (2) whether the declarant was so situated that he might have
           committed the crime; (3) the timing of the declaration; (4) the
           spontaneity of the declaration; (5) the relationship between the declarant
           and the party to whom the statement was made; and (6) the existence of
           independent corroborative facts.

Woods v. State, 152 S.W.3d 105, 113 (Tex. Crim. App. 2004).

       Herrera testified that the statements made in the recording were false and that her

boyfriend, Simmons, came up with the story and encouraged her to tell the District

Attorney’s office that her injuries were caused by a fight with other girls. As an impetus

for the fight, the story continued that Simmons had cheated on Herrera with these girls.

Herrera further noted that she and Simmons “practiced it and practiced it” prior to

making the recorded statements. The record reflected that the assault occurred on May

28, 2015, yet Herrera made the recorded statements approximately a year later in April

and June 2016. As for the reason she made the recorded statements, Herrera explained

that she did not want to get Simmons in trouble and that she was willing to go to jail for

filing a false report because she “thought he loved [her].”

       The record included an eyewitness, Bobbie Barrett, who observed and described

the May 28, 2015 assault of Herrera by Simmons.            This testimony contradicts the

statements made in the recording and undermines their veracity. Furthermore, Barrett

recounted Herrera’s fresh injuries, including fresh blood and scratches, which also

contradicts Herrera’s recorded statements that the injuries were sustained earlier in the

day from a fight with the above-mentioned girls.
Simmons v. State                                                                          Page 4
       Based on the foregoing testimony, and because Simmons does not cite to authority

holding that recorded statements similar to those made by Herrera are self-corroborating,

and because Simmons did not proffer independent, corroborating evidence, we cannot

say that the record contains sufficient corroborating circumstances to indicate the

trustworthiness of Herrera’s recorded statements. See id. at 113; see also Cunningham v.

State, 877 S.W.2d 310, 312 (Tex. Crim. App. 1994) (noting that a statement against penal

interest may be corroborated by “proof that the statement was against the declarant’s

interest to an unusual or devastating degree, that the declarant repeated his story often

and consistently, or that he could not have been motivated to falsify for the benefit of the

accused”). As such, we cannot conclude that the trial court abused its discretion by

excluding the recorded statements. See TEX. R. EVID. 803(24); see also Martinez, 327 S.W.3d

at 736; Montgomery, 810 S.W.2d at 391.

       In any event, even if we were to conclude that Simmons sufficiently corroborated

Herrera’s recorded statements, the failure of the trial court to admit the evidence was

harmless. See TEX. R. APP. P. 44.2(b). This is because the substance of the recorded

statements was admitted elsewhere in the trial without objection. Cf. Lane v. State, 151

S.W.3d 188, 193 (Tex. Crim. App. 2004) (holding that any error in the admission of

evidence is cured when the same evidence is admitted elsewhere without objection); see

also Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (same). In fact, the State




Simmons v. State                                                                      Page 5
and defense counsel spent a significant amount of time questioning Herrera about the

veracity, content, and circumstances surrounding the making of the recorded statements.

       And to the extent that it can be argued that the recorded statements should have

been admitted for impeachment purposes, we note that Herrera did not deny making the

recorded statements and admitted to the content of the statements. Thus, the recorded

statements were not admissible under Texas Rule of Evidence 613(a)(4). See TEX. R. EVID.

613(a)(4) (“Extrinsic evidence of a witness’s prior inconsistent statement is not admissible

unless the witness is first examined about the statement and fails to unequivocally admit

making the statement.”). We overrule Simmons’s first issue.

                                    II.    THE JURY CHARGE

       In his second issue, Simmons complains about errors in the jury charge. In

particular, he argues that: (1) the abstract portion of the charge only instructed the jury

regarding assault against a family member or household member and not the

commission of such an offense against a person with whom the defendant has a dating

relationship; (2) the abstract portion of the charge failed to provide statutory definitions

for family and household, and the charge did not provide a complete statutory definition

for dating relationship; and (3) the application paragraph omitted two of the three types

of relationships alleged in the indictment—namely, family or household member. In its

brief, the State concedes, and we agree, that the charge contains error. The State contends

that the error was not egregiously harmful to Simmons.


Simmons v. State                                                                      Page 6
A.     Applicable Law

       In reviewing a jury-charge issue, an appellate court’s first duty is to determine

whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.

App. 1996). If error is found, the appellate court must analyze that error for harm.

Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was properly

preserved by objection, reversal will be necessary if the error is not harmless. Almanza v.

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, if error was not preserved

at trial by a proper objection, as was the case here, a reversal will be granted only if the

error present egregious harm. Id. To obtain a reversal for jury-charge error, Simmons

must have suffered actual harm and not just merely theoretical harm. Sanchez v. State,

376 S.W.3d 767, 775 (Tex. Crim. App. 2012); Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim.

App. 1986).

       Because Simmons did not object to the charge in the trial court, we must analyze

any error for egregious harm. In doing so, we consider: (1) the entire jury charge; (2) the

state of the evidence, including the contested issues and the weight of the probative

evidence; (3) the final arguments of the parties; and (4) any other relevant information

revealed by the trial court as a whole. Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App.

2008). Jury-charge error is egregiously harmful if it affects the very basis of the case,

deprives the defendant of a valuable right, or vitally affects a defensive theory. Stuhler v.




Simmons v. State                                                                       Page 7
State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121

(Tex. Crim. App. 2006).

B.      Discussion

        1. The Entire Jury Charge

        In the instant case, Simmons was charged with assault family violence under

section 22.01(a)(1), which was enhanced by Simmons’s prior conviction for assault family

violence under section 22.01(b)(2)(A).2 See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(2)(A).

Section 22.01(a)(1) of the Penal Code provides that a person commits the offense of assault

if he “intentionally, knowingly, or recklessly causes bodily injury to another, including

the person’s spouse.” Id. § 22.01(a)(1). An offense under subsection (a)(1) may be

enhanced from a Class A misdemeanor to a third-degree felony if the offense is

committed against,

        a person whose relationship to or association with the defendant is
        described by Section 71.0021(b), 71.003, or 71.005 of the Family Code,[3] if:



        2 The indictment provided that Simmons “intentionally, knowingly, and recklessly cause[d] bodily
injury to SELSA HERRERA, a member of the Defendant’s family or a member of the Defendant’s household
or a person with whom the Defendant has or has had a dating relationship, as described by Section 71.003
or 71.005 or 71.0021(b) of the Texas Family Code . . . .”

        3Under section 71.0021(b) of the Family Code, a “dating relationship” is “a relationship between
individuals who have or have had a continuing relationship of a romantic or intimate nature.” TEX. FAM.
CODE ANN. § 71.0021(b) (West 2019). Section 71.0021(b) then provides more precise parameters for defining
a dating relationship. Id. § 71.0021(b)(1)-(3). Section 71.003 of the Family Code defines “[f]amily” as
“individuals related by consanguinity or affinity, as determined under Sections 573.022 and 573.024,
Government Code.” Id. § 71.003 (West 2019). And finally, under section 71.005 of the Family Code a
“[h]ousehold” is “a unit composed of persons living together in the same dwelling without regard to
whether they are related to each other.” Id. § 71.005 (West 2019).


Simmons v. State                                                                                  Page 8
           (A) it is shown on the trial of the offense that the defendant has been
               previously convicted of an offense under this chapter, Chapter 19, or
               Section 20.03, 20.04, 21.11, or 25.11 against a person whose
               relationship to or association with the defendant is described by
               Section 71.0021(b), 71.003, or 71.005 of the Family Code.

Id. § 22.01(b)(2)(A).4

       Simmons’s complaint with regard to the application portion of the charge is that

the trial court failed to instruct the jury on two of the three types of relationships alleged

in the indictment—family or household member. See TEX. FAM. CODE ANN. §§ 71.003,

71.005 (West 2019).

       In the application portion of the charge, the trial court narrowed the scope of the

individuals to which the assaultive conduct was directed to that of someone in a dating

relationship with Simmons, as defined in section 71.0021(b). The application portion of

the charge did not reference the other two types of relationships alleged in the indictment

under sections 71.003 and 71.005 of the Family Code. In other words, the charge did not

track the language of the indictment or the operative statute. See TEX. PENAL CODE ANN.

§ 22.01(a)(1), (b)(2)(A).

       Nevertheless, the State contends that the failure to reference the other two types

of relationships alleged in the indictment is not egregiously harmful because the record

did not contain any evidence demonstrating that Herrera and Simmons lived together or



       4 Simmons stipulated that the enhancement under section 22.01(b)(2)(A) of the Penal Code was
“true.” See TEX. PENAL CODE ANN. § 22.01(b)(2)(A) (West 2019).


Simmons v. State                                                                            Page 9
that they are family members. We agree. The record contains no evidence that Herrera

and Simmons are family members or that they lived together. Rather, the record only

reflects that they were in a dating relationship. We therefore cannot conclude that this

factor weighs in favor of a finding of egregious harm.

       2. The State of the Evidence and Counsel’s Arguments

       “One of [the] considerations in the determination of egregious harm is whether

the error related to a contested issue.” Hutch, 922 S.W.2d 166, 172 (Tex. Crim. App. 1996)

(quotations omitted). “When the error relates to an incidental defensive theory rather

than an obviously contested issue, the harm is less likely to be egregious.” Hines v. State,

535 S.W.3d 102, 114 (Tex. App.—Eastland 2017, pet. ref’d).

       Again, as noted earlier, it was undisputed that Herrera and Simmons were in a

dating relationship. Both Herrera and her mother, Nellie Rodriguez, documented the

dating relationship between Simmons and Herrera, including when and where the

couple met and the number of times the couple went to church, went on dates, and were

together at each other’s house.

       Furthermore, in its closing argument, the State mentioned the definition of “dating

relationship” and recounted that Herrera and Rodriguez established that Simmons and

Herrera “were boyfriend and girlfriend.” The crux of Simmons’s closing argument was

that Herrera was lying and that eyewitness Bobbie Barrett was creating memories from

what Herrera told her, rather than what she saw. Simmons’s counsel also argued that


Simmons v. State                                                                     Page 10
the police did not do a thorough investigation. At no point during the trial did Simmons’s

counsel challenge the evidence or element of a dating relationship. Given the foregoing,

we find that these factors weigh against a finding of egregious harm. See Gelinas, 398

S.W.3d at 710; see also Allen, 253 S.W.3d at 264.

       3. Other Relevant Information

       Other than mentioning that the failure to include in the application paragraph two

of the three statutorily-defined relationships alleged in the indictment amounted a

comment on the evidence by the trial court, a contention we addressed in the factor

pertaining to the entire jury charge, we have not independently found, and Simmons

does not direct us to any, other relevant information that weighs in favor of a finding of

egregious harm. As such, we cannot say that this factor weighs in favor of a finding of

egregious harm. See Gelinas, 398 S.W.3d at 710; see also Allen, 253 S.W.3d at 264.

       4. Conclusion

       Despite the numerous errors in the charge, we cannot say that the errors affected

the very basis of the case, vitally affected Simmons’s defensive theory, or deprived

Simmons of a valuable right. See Stuhler, 218 S.W.3d at 719; Sanchez, 209 S.W.3d at 121.

While we are troubled that the charge did not completely track the indictment or the

operative statute, the fact remains that the errors complained about in this issue pertain

to the relationship between Herrera and Simmons—an element that was not contested at

trial. See Hutch, 922 S.W.2d at 172; see also Hines, 535 S.W.3d at 114. As mentioned earlier,


Simmons v. State                                                                      Page 11
the focus of Simmons’s defense at trial was that Herrera is a convicted and admitted liar

and that she convinced Barrett to participate in the lies. We therefore cannot say that

Simmons was egregiously harmed by the charge in this case. See Almanza, 686 S.W.2d at

171; see also Sanchez, 376 S.W.3d at 775; Arline, 721 S.W.2d at 352. We overrule his second

issue.

                                   III.   THE TIME-PAYMENT FEE

         In his third issue, Simmons contends that the court cost imposed for a time-

payment fee under section 133.103(b) and (d) of the Local Government Code is

unconstitutional. As such, Simmons requests that we modify the judgments by deleting

$22.50 of the court costs assessed.

         Simmons did not object to the imposition of court costs in the trial court. The cost

bills were generated the same day as the judgment on August 2, 2018, but are not clearly

incorporated into the judgment. The judgment includes a blank for “court costs,” which

states “SEE BELOW.” The judgment also includes a section entitled, “Attachment A,

Order to Withdraw Funds, is incorporated into this judgment and made a part hereof.”

The box next to this section in each judgment is not checked.

         Convicted defendants may object to the assessment of mandatory court costs

against them for the first time on appeal when the judgment does not contain an

itemization of the imposed court costs. London v. State, 490 S.W.3d 503, 507 (Tex. Crim.

App. 2016); see Bowden v. State, 502 S.W.3d 913, 914 (Tex. App.—Houston [14th Dist.] 2016,


Simmons v. State                                                                      Page 12
pet. ref’d). Because the section 133.103 time-payment fees is a mandatory court cost

imposed upon conviction for a felony or misdemeanor, and because the judgment in this

case does not contain an itemization of the imposed court costs, we conclude that

preservation of this complaint was not required. See TEX. LOCAL GOV’T CODE ANN. §

133.103(a) (providing that “[a] person convicted of an offense shall pay, in addition to all

other costs, a fee of $25 if the person . . . has been convicted of a felony or misdemeanor;

and . . . 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”);

London, 490 S.W.3d at 507; Bowden, 502 S.W.3d at 914.                  We now analyze the

constitutionality of the statute.

       We review the constitutionality of a criminal statute de novo as a question of law.

Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013).                  When reviewing the

constitutionality of a statute, we presume that the statute is valid and that the legislature

was neither unreasonable nor arbitrary in enacting it. See Rodriguez v. State, 93 S.W.3d 60,

69 (Tex. Crim. App. 2002); see also State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App.

2013). We must uphold the statute if we can apply a reasonable construction that will

render it constitutional. Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. [Panel Op.]

1979). Moreover “[a] reviewing court must make every reasonable presumption in favor

of the statute’s constitutionality, unless the contrary is clearly shown.” Peraza v. State, 467

S.W.3d 508, 514 (Tex. Crim. App. 2015) (internal citations omitted). The burden of


Simmons v. State                                                                         Page 13
establishing the unconstitutionality of a statute falls on the party seeking to challenge the

statute. Rosseau, 396 S.W.3d at 557.

       In the instant case, Simmons makes a facial challenge to the constitutionality of

section 133.103(b) and (d) of the Local Government Code. A facial challenge is an attack

on a statute itself, as opposed to a particular application. Peraza, 467 S.W.3d at 514. As

such, the challenger must establish that “no set of circumstances exists under which the

statute would be valid.” Id.; see Rosseau, 396 S.W.3d at 557 (holding that a party asserting

a facial challenge “must establish that the statute always operates unconstitutionally in

all possible circumstances”). “A facial challenge to a statute is the most difficult challenge

to mount successfully because the challenger must establish that no set of circumstances

exists under which the statute will be valid.” Santikos v. State, 836 S.W.2d 631, 633 (Tex.

Crim. App. 1992).

       When analyzing a facial challenge to court costs, we consider only applications of

the statute that it authorizes or prohibits. See Peraza, 467 S.W.3d at 515. We do not

theorize where funds collected and distributed might be spent when evaluating the facial

constitutionality of a court cost. See id.

       Section 133.103 of the Local Government Code contains provisions for the time-

payment fee. See TEX. LOCAL GOV’T CODE ANN. § 133.103. As mentioned above, a person

convicted of a felony or misdemeanor shall pay, in addition to all other costs, a $25 fee if

the person pays “any part of a fine, court costs, or restitution on or after the 31st day after


Simmons v. State                                                                        Page 14
the date on which the judgment is entered assessing the fine, court costs, or restitution.”

Id. § 133.103(a). The statute directs the treasurer to allocate the fees collected in the

following three ways: (1) send fifty percent of the fees collected to the comptroller, who

shall then deposit the fees to the credit of the general revenue fund; (2) deposit ten percent

of the fees in the general fund of the county or municipality “for the purpose of improving

the efficiency of the administration of justice in the county or municipality; and (3)

deposit forty percent of the fees in the general revenue account of the county or

municipality. Id. § 133.103(b)-(d).

       Simmons does not contest the percentage of the $25 time-payment fee that is

directed to the general fund of the county or municipality “for the purpose of improving

the efficiency of the administration of justice in the county or municipality.” Id. §

133.103(c). Rather, he challenges the remaining ninety percent of collected fees, which

are directed by subsections (b) and (d) to general funds that do not have a legitimate

criminal-justice purpose.

       Several Texas courts have recently concluded that sections 133.103(b) and (d) are

unconstitutional. See Johnson v. State, 573 S.W.3d 328, 340 (Tex. App.—Houston [14th

Dist.] 2019, pet. filed); see also Dulin v. State, Nos. 03-18-00523-CR & 03-18-00524-CR, 583

S.W.3d 351, 2019 Tex. App. LEXIS 7084, at **4-5 (Tex. App.—Austin Aug. 14, 2019, pet.

filed); Kremplewski v. State, No. 01-19-00033-CR, ___ S.W.3d ___, 2019 Tex. App. LEXIS

6919, at **5-8 (Tex. App.—Houston [1st Dist.] Aug. 8, 2019, pet. filed); King v. State, No.


Simmons v. State                                                                       Page 15
11-17-00179-CR, 2019 Tex. App. LEXIS 5902, at **13-14 (Tex. App.—Eastland July 11, 2019,

pet. filed) (mem. op., not designated for publication). These courts noted that the time-

payment fee is simply a late fee that does not reimburse the county or State for expenses

incurred in connection with the defendant’s criminal trial or criminal resources generally.

See Johnson, 573 S.W.3d at 340; see also Dulin, 2019 Tex. App. LEXIS 7084, at *4; Kremplewski,

2019 Tex. App. LEXIS 6919, at **5-7; King, 2019 Tex. App. LEXIS 5902, at *13.

Additionally, they concluded that subsections (b) and (d) do not direct funds to be used

for legitimate criminal-justice purposes; rather, the subsections direct collected funds into

a general revenue fund without limitation or restriction. See Johnson, 573 S.W.3d at 340;

see also Dulin, 2019 Tex. App. LEXIS 7084, at *4; Kremplewski, 2019 Tex. App. LEXIS 6919,

at **5-7; King, 2019 Tex. App. LEXIS 5902, at *13. Because the collected funds are sent into

a general-revenue fund and are not sufficiently related to the criminal-justice system or a

legitimate criminal-justice purpose, these courts concluded that subsections (b) and (d)

are unconstitutional. See Johnson, 573 S.W.3d at 340; Salinas v. State, 523 S.W.3d 103, 109

n.26 (Tex. Crim. App. 2017) (“Because the constitutional infirmity in this case is the

statute’s failure to direct the funds to be used in a manner that would make it a court cost

(i.e., for something that is a criminal justice purpose), the statute operates

unconstitutionally every time the fee is collected, making the statute unconstitutional on

its face.”); see also Dulin, 2019 Tex. App. LEXIS 7084, at *4; Kremplewski, 2019 Tex. App.

LEXIS 6919, at **5-7; King, 2019 Tex. App. LEXIS 5902, at *13.


Simmons v. State                                                                       Page 16
       We agree with our coordinate courts and adopt their reasoning herein.

Accordingly, we conclude that section 133.103(b) and (d) are facially unconstitutional.

Furthermore, our holding does not apply to section 133.103(c), which allocated ten

percent of the fee to the general fund of the county or municipality to be expended for

the purpose of improving the efficiency of the administration of justice in the county or

municipality. See Johnson, 573 S.W.3d at 340; see also Dulin, 2019 Tex. App. LEXIS 7084, at

**4-5; Kremplewski, 2019 Tex. App. LEXIS 6919, at **5-8; King, 2019 Tex. App. LEXIS 5902,

at *14. We therefore sustain Simmons’s third issue.

                                      IV.    CONCLUSION

       Because we have sustained Simmons’s third issue and concluded that ninety

percent of the time-payment fee, as prescribed in section 133.103(b) and (d) of the Local

Government Code, is facially unconstitutional, we modify the trial court’s judgment to

change the time-payment fee from $25 to $2.50. We affirm the trial court’s judgment as

modified.




                                                JOHN E. NEILL
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Affirmed as modified
Opinion delivered and filed November 27, 2019
Publish
[CR25]
Simmons v. State                                                                    Page 17
