Carlton Charles Penright v. State , 2015 Tex. App. LEXIS 10108 ( 2015 )

Opinion issued September 29, 2015
In The
Court of Appeals
For The
First District of Texas
NO. 01-12-00647-CR
CARLTON CHARLES PENRIGHT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Cause No. 1247950
OPINION
The State indicted Carlton Charles Penright on the charge of aggravated
sexual assault, and a jury found him guilty of the lesser offense of sexual assault.
The jury sentenced Penright to 15 years in prison, and the trial court’s judgment
assessed court costs in the amount of $534. The trial court later entered a
judgment nunc pro tunc reducing the amount of costs assessed to $484, which
includes a $133 consolidated court cost authorized by Local Government Code
section 133.102 and a $15 Sheriff’s fee. In three issues, Penright contends that
(1) the provision of the Local Government Code that authorizes the assessment of
the $133 consolidated court cost is unconstitutional, (2) there is insufficient
evidence to support the assessment of the $15 Sheriff’s fee, and (3) the trial court
abused its discretion by setting but then failing to hold a hearing on Penright’s
motion for new trial and motion in arrest of judgment. We affirm.
Constitutionality of Local Government Code Section 133.102
According to Penright, the $133 consolidated court cost authorized by Local
Government Code section 133.102 violates the separation of powers clause of the
Texas Constitution because it is a “tax” collected by the judiciary to benefit
accounts that are neither necessary nor incidental to the trial of a criminal case. See
TEX. LOC. GOV’T CODE ANN. § 133.102 (West Supp. 2014).
A. Standard of Review
“A facial challenge is an attack on a statute itself as opposed to a particular
application.” City of Los Angeles v. Patel, 135 S. Ct. 2443, 2449 (2015). The
party challenging the statute bears the burden of establishing the statute’s
unconstitutionality. State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App.
2
2013). To successfully mount a facial challenge to a statute, that party must
establish that no set of circumstances exists under which that statute would be
valid. Peraza v. State, Nos. PD-0100-15 & PD-0101-15, -- S.W.3d --, 2015 WL
3988926, at *4 (Tex. Crim. App. July 1, 2015); see Santikos v. State, 836 S.W.2d
631, 633 (Tex. Crim. App. 1992) (“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.”).
When reviewing a constitutional challenge, we presume that the statute is
valid and that the legislature was “neither unreasonable nor arbitrary in enacting
it.” Curry v. State, 186 S.W.3d 39, 42 (Tex. App.—Houston [1st Dist.] 2005, no
pet.); see Rosseau, 396 S.W.3d at 557; see also State ex. rel. Lykos v. Fine, 330
S.W.3d 904, 908–9 (Tex. Crim. App. 2011) (same). A reviewing court must make
every reasonable presumption in favor of the statute’s constitutionality, unless the
contrary is shown. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App.
1978).
B. Applicable Law
Section 133.102(a)(1) of the Texas Local Government Code mandates that
“[a] person convicted of an offense shall pay as a court cost, in addition to all other
costs: $133 on conviction of a felony.” TEX. LOC. GOV’T CODE ANN.
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§ 133.102(a)(1). The Local Government Code requires the comptroller to allocate
the proceeds collected among the following fourteen accounts and funds:
(1) abused children’s counseling;
(2) crime stoppers assistance;
(3) breath alcohol testing;
(4) Bill Blackwood Law Enforcement Management Institute;
(5) law enforcement officers standards and education;
(6) comprehensive rehabilitation;
(7) law enforcement and custodial officer supplemental retirement
fund; 1
(8) criminal justice planning;
(9) 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;
(10) compensation to victims of crime fund;
(11) emergency radio infrastructure account;
(12) judicial and court personnel training fund;
1
Effective September 1, 2013, subsection (7) was amended from “operator’s and
chauffeur’s license” to “law enforcement and custodial officer supplemental
retirement fund.” See Act of May 29, 2011, 82nd Leg., R.S., ch. 1249, § 13(b),
2011 Tex. Gen. Laws 3349, 3353. Although Penright’s court costs were imposed
on June 28, 2012, because he did not pay them before September 1, 2013, the
distribution will be governed by now-effective section 133.102(e)(7).
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(13) an account in the state treasury to be used for the establishment
and operation of the Correctional Management Institute of
Texas and Criminal Justice Center Account; and
(14) fair defense account.
See TEX. LOCAL GOV’T CODE ANN. § 133.102(e).
C. Analysis
Penright urges us to declare section 133.102(a)(1) facially unconstitutional
because, Penright argues, it requires the judicial branch to collect a tax, which is a
power that the separation of powers clause reserves solely to the executive branch.
Penright contends that the allocation of proceeds collected under section
133.102(a)(1) to twelve of the fourteen enumerated programs is contrary to Ex
parte Carson, 159 S.W.2d 126 (Tex. Crim. App. 1942), because these 12 programs
are “neither necessary nor incidental to the trial of a criminal case.”2
In Ex parte Carson, Carson challenged the constitutionality of a statute
authorizing the assessment of a $1 fee to fund law libraries. The fee was assessed
in civil and criminal cases, but only in counties having more than a certain number
of district and county courts. Id. at 127. The Court of Criminal Appeals
concluded that “the tax imposed by the bill is not and cannot be logically
considered a proper item of cost in litigation, particularly in criminal cases.” Id. at
2
Penright does not challenge the constitutionality of two of the programs
enumerated in section 133.102: judicial and court personnel training fund and fair
defense system. See TEX. LOCAL GOV’T CODE ANN. § 133.102(e)(12), (14).
Because Penright concedes their constitutionality, we do not address them further.
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127. It held that (1) the $1 cost was “neither necessary nor incidental to the trial of
a criminal case [and thus was] not a legitimate item to be so taxed” against a
criminal defendant; (2) the statute was a local or special law, which the state
legislature was not authorized to enact; and (3) collection of this cost only in
certain counties was discriminatory. Id. at 127–30.
The Court of Criminal Appeals recently rejected a Carson-based facial
constitutional challenge in an analogous case. See Peraza v. State, Nos. PD-0100-
15 & PD-0101-15, -- S.W.3d --, 2015 WL 3988926, at *6–7 (Tex. Crim. App. July
1, 2015). Peraza involved a facial constitutional challenge to Article 102.020 of
the Texas Code of Criminal Procedure, which required trial courts to assess a $250
DNA record fee on conviction of specified offenses. Id. at *6–7. The Peraza
Court expressly rejected Carson’s holding that court costs must be “necessary” or
“incidental” to the trial of a criminal case in order to pass constitutional muster:
if the statute under which court costs are assessed (or an
interconnected statute) provides for an allocation of such court costs
to be expended for legitimate criminal justice purposes, then the
statute allows for a constitutional application that will not render the
courts tax gatherers in violation of the separation of powers clause.
Id. at *7. The Peraza court explained that a legitimate criminal justice purpose is
one that “relates to the administration of our criminal justice system.” Id. It added
that the question of whether a criminal justice purpose is legitimate must be
considered on a “statute-by-statute/case-by-case basis.” Id. Thus, after Peraza, the
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question we consider is not whether the funds enumerated in section 133.102(e) are
necessary or incidental to the trial of a criminal case, but, rather, whether those
funds relate to the administration of our criminal justice system. Id.
In determining whether Peraza met his burden to demonstrate that section
102.020 could not operate constitutionally under any circumstance, the Peraza
court considered the uses to which funds collected under the statute would be put.
Id. (considering “statutorily provided for” applications and noting that it would be
improper to evaluate constitutionality by “theorizing where the funds collected
. . . might be spent”). For example, with respect to the 65% of the DNA record fee
deposited to the credit of the criminal justice planning account, the Peraza court
concluded that the statute passed constitutional muster because the criminal justice
planning account is statutorily required to reimburse monies spent collecting DNA
specimens from offenders charged with certain offenses, including aggravated
sexual assault of a child under 14, the offense for which Peraza was convicted. Id.
at *7–8. Thus, the Court concluded that the DNA fee was constitutional because
the funds collected are allocated by statute to a purpose that is related to the
administration of our criminal justice system. Id. at *8.
Applying the analysis set forth in Peraza to the statute Penright challenges
here leads us to conclude that the consolidated court cost authorized by section
133.102(e) is likewise constitutional. Several interconnected Texas statutes dictate
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the manner in which the vast majority of the proceeds collected under section
133.012(a) are to be expended:
• Section 133.102(e)(2) directs the comptroller to allocate .2581% of the
proceeds received to “crime stoppers assistance.” TEX. LOC. GOV’T CODE
ANN. § 133.102(e)(2). These proceeds are appropriated to the Criminal
Justice Division of the Governor’s Office, which distributes 90% of the
proceeds to crime stoppers organizations and may use up to 10% of the
funds for the operation of the toll-free telephone service in areas of Texas
not served by a crime stoppers organization for reporting to the council
information about criminal acts. See TEX. CODE CRIM. PROC. ANN. art.
102.013(a) (West 2006); TEX. GOV’T CODE ANN. § 414.012 (West 2012).
• Section 133.102(e)(3) directs the comptroller to allocate .5507% of the
proceeds received to “breath alcohol testing.” TEX. LOC. GOV’T CODE ANN.
§ 133.102(e)(3). These proceeds may be used by counties that maintain a
certified breath alcohol testing program but do not use the services of a
certified technical supervisor employed by the Department of Public Safety
to defray the costs of maintaining and supporting a certified breath alcohol
testing program, and it may be used by the Department in the
implementation, administration, and maintenance of the statewide certified
breath alcohol testing program. See TEX. CODE CRIM. PROC. ANN. art.
102.016 (West Supp. 2014).
• Section 133.102(e)(4) directs the comptroller to allocate 2.1683% of the
proceeds received to the “Bill Blackwood Law Enforcement Management
Institute.” TEX. LOC. GOV’T CODE ANN. § 133.102(e)(4). These proceeds
are used to pay for the cost of Texas residents’ participation in the
Institute’s law enforcement management training programs. TEX. EDUC.
CODE ANN. § 96.64(a), (c) (West 2002).
• Section 133.102(e)(5) directs the comptroller to allocate 5.0034% of the
proceeds received to “law enforcement officers standards and education.”
TEX. LOC. GOV’T CODE ANN. § 133.102(e)(5). Two-thirds of these
proceeds may be used “only to pay expenses related to continuing
education” for law enforcement officers licensed under Chapter 1701 of the
Occupations Code, and the remaining third may be used only to pay related
administrative expenses. TEX. LOCAL GOV’T CODE ANN. § 133.102(f).
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• Section 133.102(e)(6) directs the comptroller to allocate 9.8218% of the
proceeds received to “comprehensive rehabilitation.” TEX. LOC. GOV’T
CODE ANN. § 133.102(e)(6). These proceeds may be used only to provide
rehabilitation services directly or through public resources to individuals
determined by the department to be eligible for the services under a
vocational rehabilitation program or other program established to provide
rehabilitation services, as described in Human Resources Code section
111.052. TEX. HUM. RES. CODE ANN. §§ 111.052, 111.060 (West 2013).
• Section 133.102(e)(7) directs the comptroller to allocate 11.1426% of the
proceeds received to the “law enforcement and custodial officer
supplemental retirement fund.” TEX. LOC. GOV’T CODE ANN.
§ 133.102(e)(7). These funds may be used only to pay supplemental
retirement and death benefits to law enforcement and custodial officers and
to pay for administration of the fund. TEX. GOV’T CODE ANN. § 815.317(b)
(West Supp. 2014). 3
• Section 133.102(e)(8) directs the comptroller to allocate 12.5537% of the
proceeds received to “criminal justice planning.” TEX. LOC. GOV’T CODE
ANN. § 133.102(e)(8). These funds are to be used for state and local
criminal justice projects which aim to reduce crime and improve the
criminal and juvenile justice systems, and for other court-related purposes.
TEX. CODE OF CRIMINAL PROC. 102.056(a), (b) (West Supp. 2014).
• Section 133.102(e)(9) directs the comptroller to allocate 1.2090% of the
proceeds received to “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.”
TEX. LOC. GOV’T CODE ANN. § 133.102(e)(9). The center may conduct and
evaluate research relating to juvenile justice crime and delinquency and
provide a setting for educational programs relating to juvenile crime and
3
Before September 1, 2013, this 11.1426% was directed to the Operators and
Chauffeurs License Fund which was administered by the Department of Public
Safety. See Act of May 29, 2011, 82nd Leg., R.S., ch. 1249, § 13(b), 2011 Tex.
Gen. Laws 3349, 3353. Undedicated and unobligated monies in this fund could be
appropriated “only to the criminal justice division for the purpose of awarding
grants” under the Prosecution of Border Crime Grant Program. See Act of May
23, 2011, 82nd Leg., R.S., ch. 1106, § 1, 2011 Tex. Gen. Laws 2854, 2855
(enacting now-repealed TEX. GOV’T CODE ANN. § 772.0071(d)).
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delinquency, including educational training for criminal justice and social
service professionals. TEX. EDUC. CODE ANN. § 87.105(d) (West 2002).
• Section 133.102(e)(10) directs the comptroller to allocate 37.6338% of the
proceeds received to the “compensation to victims of crime fund.” TEX.
LOC. GOV’T CODE ANN. § 133.102(e)(10). These funds may be used for the
payment of compensation to claimants or victims, to reimburse a law
enforcement agency for the reasonable costs of a sexual assault medical
examination, to administer the associate judge program for child protection
cases, and for victim-related services or assistance. TEX. CODE CRIM. PROC.
ANN. arts. 56.54 (West Supp. 2014), 56.542 (West 2006).
• Section 133.102(e)(11) directs the comptroller to allocate 5.5904% of the
proceeds received to the “emergency radio infrastructure account.” These
funds may only (1) be used for planning, development, provision,
enhancement or ongoing maintenance of interoperable statewide emergency
radio infrastructure, (2) be used in accordance with the statewide integrated
public safety radio communications plan, (3) be used for the development of
a regional or state interoperable radio communication system, (4) be
distributed as grants by the department to regional governments that have
entered into interlocal agreements and state agencies requiring emergency
radio infrastructure, or (5) be used for other public safety purposes. TEX.
GOV’T CODE ANN. § 411.402 (West 2012).
• Section 133.102(e)(13) directs the comptroller to allocate 1.2090% of the
proceeds received to “an account in the state treasury to be used for the
establishment and operation of the Correctional Management Institute of
Texas and Criminal Justice Center Account.” These funds are used for the
training of criminal justice professionals. TEX. EDUC. CODE ANN.
§ 96.645(b) (West Supp. 2014).
These interconnected statutes direct the comptroller to allocate 99.99% of
the proceeds collected under section 133.102(e) to uses that relate to the
administration of our criminal justice system and are therefore legitimate criminal
justice purposes under Peraza. See Peraza, 2015 WL 3988926, at *7–8. Although
no current statute mandates how the .0088% of the proceeds allocated to abused
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children’s counseling under section 133.102(e)(1) may be spent, abused children’s
counseling on its face relates to the administration of our criminal justice system
by providing resources for victimized children. Thus, Penright has failed to
establish that it is not possible for section 133.102(e) to operate constitutionally in
any circumstance. Id. (appellant failed to meet burden to establish that it was not
possible for court cost provision to operate constitutionally in any circumstance
where interconnected statutory provisions provided for funds to be expended for
legitimate criminal justice purposes); see also Luquis v. State, 72 S.W.3d 355, 365
n.26 (Tex. Crim. App. 2002) (we favor constitutional reading over unconstitutional
reading when construing statutes.).
In sum, the interconnected statutory provisions providing for the allocation
of the funds collected as court costs pursuant to section 133.120 allow and require
that the vast majority of the proceeds collected be expended for legitimate criminal
justice purposes. See Peraza, 2015 WL 3988926, at *8. We therefore hold that
Penright has not met his burden to establish that it is not possible for section
133.102 to operate constitutionally under any circumstance. Accordingly, the trial
court did not err in denying Penright’s motions in arrest of judgment and for new
trial.
We overrule Penright’s first issue.
Sufficient evidence supports the Sheriff’s fee
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In his second issue, Penright contends that the evidence is insufficient to
support the assessment of the Sheriff’s fee in the amount of $15 because the record
contains no Sheriff’s fee record.
According to Penright, article 103.009 of the Texas Code of Criminal
Procedure requires the Harris County Sheriff’s Department to keep a fee record
and, therefore, the appellate record must contain the Sheriff’s fee record. See TEX.
CODE CRIM. PROC. ANN. art. 103.009(a) (“Each clerk of court, county judge, justice
of the peace, sheriff, constable, and marshal shall keep a fee record.”). But we
have previously rejected this argument—the record need not contain a Sheriff’s fee
record. See Cardenas v. State, 403 S.W.3d 377, 386 n.10 (Tex. App.—Houston
[1st Dist.] 2013) (rejecting same argument and noting appellant presented no
authority that article 103.009 fee record must be filed with trial court to support
inclusion of sheriff’s fees among costs chargeable to appellant and presented no
argument that costs where not legally authorized), aff’d, 423 S.W.3d 396 (Tex.
Crim. App. 2014).
Here, the clerk’s record includes a “J.I.M.S. Cost Bill Assessment,” which
includes a $5.00 commitment fee, a $5.00 release fee, and a $5.00 fee for making
an arrest without a warrant fee—amounting to the $15 Sheriff’s fee in the
judgment. Penright contends that the J.I.M.S cost bill assessment is not a proper
bill of costs because it is a “print out and not the type of record required by the
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statute.” The Court of Criminal Appeals has rejected this argument. See Johnson
v. State, 423 S.W.3d 385, 391–94 (Tex. Crim. App. 2014).
“[W]e review the assessment of court costs on appeal to determine if there is
a basis for the cost, not to determine if there was sufficient evidence offered at trial
to prove each cost, and traditional Jackson evidentiary-sufficiency principles do
not apply.” Johnson, 423 S.W.3d at 390. We review the sufficiency of the
evidence supporting the award of costs in the light most favorable to the trial
court’s judgment. See Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App.
2010); Cardenas, 403 S.W.3d at 385.
A defendant convicted of a felony offense must pay certain statutorily
mandated costs and fees. See Johnson, 423 S.W.3d at 389. The record shows that
Penright was convicted of a felony in district court, supporting each of the
following court costs constituting a Sheriff’s fee:
(1) $5.00 for making an arrest without a warrant;4
(2) $5.00 as a commitment fee;5
(3) $5.00 as a release fee; 6
4
TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(1) (West Supp. 2014) (“$5 for . . .
making an arrest without a warrant”).
5
Id. 102.001(a)(6) (West Supp. 2014) (“A defendant convicted of a felony or a
misdemeanor shall pay the following fees for services performed in the case by a
peace officer . . . $5 for commitment or release”).
6
Id.
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These fees total $15.00, the same amount of costs assessed as a Sheriff’s fee in this
case:
$ 5.00 (making arrest without a warrant)
$ 5.00 (release fee)
$ 5.00 (commitment fee)
$ 15.00
Accordingly, we hold that the evidence was sufficient to support the
Sheriff’s fee in the amount of $15 assessed in the trial court’s judgment. See
Johnson, 423 S.W.3d at 389, 396.
We overrule Penright’s second issue.
The trial court held a hearing on Penright’s motion for new trial
In his third issue, Penright asserts that the trial court abused its discretion in
refusing to conduct a hearing on his motion for new trial and motion in arrest of
judgment. The record reflects that the trial court had scheduled a hearing on the
motion for new trial but was unable to conduct the hearing as anticipated due to
scheduling conflicts. As a result, Penright’s motion for new trial was overruled by
operation of law.
We abated this appeal and ordered the trial court to hold a hearing on the
motion for new trial. The trial court held a hearing, and we have considered the
record from that hearing on appeal. Therefore Penright’s third issue is moot. See
Highfill v. State, No. 03-00-00126-CR, 2001 WL 520978, at *10 (Tex. App.—
Austin May 17, 2001, no pet.) (not designated for publication) (holding appellant’s
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issue was rendered moot because appellant was given the opportunity to make a
record in support of his motion for new trial and appellate court considered that
record in disposing of only issue raised in the motion for new trial).
We overrule Penright’s third issue.
Conclusion
We affirm the judgment of the trial court. All pending motions are
dismissed as moot.
Rebeca Huddle
Justice
Panel consists of Chief Justice Radack and Justices Massengale and Huddle.
Publish — TEX. R. APP. P. 47.2(b).
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