Tio Jackson v. the State of Texas ( 2021 )

IN THE
TENTH COURT OF APPEALS
No. 10-17-00333-CR
No. 10-17-00334-CR
TIO JACKSON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 220th District Court
Hamilton County, Texas
Trial Court Nos. CR08282 and CR08283
MEMORANDUM OPINION ON REMAND 1
In 2017, Tio Jackson entered open pleas of guilty to two offenses: (1) theft of a
firearm, in Trial Court Number CR08282; and (2) aggravated assault with a deadly
weapon, in Trial Court Number CR08283. The trial court sentenced Jackson to ten years
1
Our original memorandum opinion in these cases was delivered on February 19, 2020. Jackson v. State,
Nos. 10-17-00333-CR and 10-17-00334-CR, 2020 Tex. App. LEXIS 1349 (Tex. App.—Waco Feb. 8, 2020). In
light of the Court of Criminal Appeals’ opinion in Dulin v. State, 620 S.W.3d 129 (Tex. Crim. App. 2021), the
Court vacated our judgments on May 12, 2021 and remanded them to us for proceedings consistent with
its opinion.
in prison in Trial Court Number CR08282 (appellate case number 10-17-00333-CR) and to
twenty-five years in prison in Trial Court Number CR08283 (appellate case number 10-
17-00334-CR). The sentences were ordered to be served concurrently.
The trial court additionally imposed court costs in both cases—$249 in Trial Court
Number CR08282 (appellate case number 10-17-00333-CR) and $299 in Trial Court
Number CR08283 (appellate case number 10-17-00334-CR). Sentence was imposed in
both cases on July 19, 2017, but the bill of costs for each case was not prepared until
December 17, 2017. Jackson’s appeals primarily challenge the court costs imposed in both
cases.
Because there are errors in the trial court’s judgments, we modify the judgments
in both cases to reflect the appropriate amount of costs to be assessed Jackson and to
correct clerical errors found in both judgments. The judgments are affirmed as modified.
Issues
In his first issue, Jackson contests the facial constitutionality of some of the court
costs imposed as part of his sentence because the costs, he argues, violate the separation
of powers provision of the Texas Constitution. In his second issue, Jackson asserts that
the trial court erred in imposing costs in both convictions because he was convicted of
both offenses in a single criminal action. The State does not challenge the timing or
propriety of Jackson’s appeal of the assessed costs. 2
2
A defendant may raise an objection to the assessment of court costs for the first time on appeal when the
costs are not imposed in open court and the judgment does not contain an itemization of the imposed court
costs, as in this case. London v. State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016).
Jackson v. State Page 2
In his third issue, Jackson argues that the judgments erroneously note there were
plea bargain agreements in each case.
Because Jackson’s arguments regarding the constitutionality of certain costs
implemented will be affected in at least one conviction by Jackson’s second issue, we
discuss Jackson’s second issue, first.
Discussion
A. Costs Assessed in both Convictions
The State concedes that the judgments in both cases should be reformed to reflect
that costs are assessed in only one case. We agree that costs should have been assessed
in either Trial Court Number CR08282 or Trial Court Number CR08283, but not both. See
Hurlburt v. State, 506 S.W.3d 199, 203-204 (Tex. App.—Waco 2016, no pet.). Accordingly,
Jackson’s second issue is sustained, and we modify the judgment in Trial Court Number
CR08282 (appellant case number 10-17-00333-CR) to delete the assessed court costs in the
amount of $249. See id. at 204.
B. Costs Challenged 3
In his first issue, Jackson specifically challenges the following assessed costs:
1. a $40 “criminal basic clerk fee,” authorized under former article
102.005(a) of the Code of Criminal Procedure;
2. a $4 “criminal juror reimbursement fund” fee, authorized under
former article 102.0045(a) of the Code of Criminal Procedure;
3Because of our disposition of Jackson’s second issue, the disposition of Jackson’s first issue will only affect
Trial Court Number CR08283 (appellate case number 10-17-00334-CR).
Jackson v. State Page 3
3. a $2 “criminal indigent defense fund” fee, authorized under former
section 133.107 of the Local Government Code; and
4. a $25 “time payment” fee, authorized under former section
133.103(a)(1)-(2) of the Local Government Code. 4
1. Standard of Review and Applicable Law
Whether a statute is facially constitutional is a question of law that we review de
novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). When considering a statute's
constitutionality, we begin with the presumption that the statute is valid. Allen v. State,
614 S.W.3d 736, 740 (Tex. Crim. App. 2019). The party challenging the constitutionality
of a statute bears the burden of establishing its unconstitutionality. Peraza v. State, 467
S.W.3d 508, 514 (Tex. Crim. App. 2015).
With the statute's presumed constitutionality, Jackson already faces a high burden.
See Allen, 614 S.W.3d at 740. But because Jackson has launched a facial challenge, he bears
an even greater burden. See id. “A facial challenge is an attack on a statute itself as
opposed to a particular application.” City of Los Angeles v. Patel, 576 U.S. 409, 135 S. Ct.
2443, 2449, 192 L.Ed.2d 435 (2015). To prevail on a facial challenge, a party must establish
that the statute always operates unconstitutionally in all possible circumstances. State v.
Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013). Thus, if there is any possible
constitutional application of the statute, a party’s facial challenge fails. Peraza, 467 S.W.3d
at 515-16. Given this high burden, a facial challenge is “the most difficult challenge to
4
Effective January 1, 2020, each of the provisions supporting the specific costs challenged by Jackson were
either repealed or relocated. See Act of May 23, 2019, 86th Leg., R.S., S.B. 346, § 2.54, 2019 Tex. Sess. Law
Serv. Ch. 1352. The legislative changes to all the provisions apply only to a cost, fee, or fine assessed on a
conviction for an offense committed on or after the effective date of the Act. Id. at § 5.01. Because the
offense in this case was committed well before January 1, 2020, the former provisions apply. Id.
Jackson v. State Page 4
mount successfully.” Allen, 614 S.W.3d at 741 (quoting United States v. Salerno, 481 U.S.
739, 745, 107 S. Ct. 2095, 95 L.Ed.2d 697 (1987)).
In this case, Jackson’s facial challenges are grounded in the separation of powers
provision of the Texas Constitution. TEX. CONST. art. II, § 1. This provision prohibits one
branch of government from assuming or delegating a power more properly attached to
another branch. See TEX. CONST. art. II, § 1; Ex parte Lo, 424 S.W.3d at 28. As it pertains to
this case, if a statute contains a provision by which courts are turned into "tax collectors,"
as Jackson alleges, then the effect of the statute is to delegate to courts a power more
properly attached to the executive branch. See Salinas v. State, 523 S.W.3d 103, 107 (Tex.
Crim. App. 2017). However, a court's assessment of costs is a proper judicial function
when "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." Id. What constitutes a legitimate criminal justice purpose is
determined on a statute-by-statute/case-by-case basis by what the governing statute says
about the intended use of the funds, not whether funds are actually used for a criminal
justice purpose. Id.At least two types of constitutionally permissible court costs have been expressly
recognized by the Court of Criminal Appeals:
(1) those that reimburse criminal justice expenses incurred in connection
with the defendant’s particular criminal prosecution, and
(2) those that are to be expended to offset future criminal justice costs.
Allen v. State, 614 S.W.3d 736, 744 (Tex. Crim. App. 2019).
Jackson v. State Page 5
2. Application of Law to Specific Fees—District Clerk Fee
Former article 102.005 of the Texas Code of Criminal Procedure required payment
of the district clerk's fee. Former TEX. CODE CRIM. PROC. art. 102.005(a) ("[a] defendant
convicted of an offense in a … district court shall pay for the services of the clerk of the
court a fee of $40."). The basis of the fee is "for all clerical duties performed by the clerk."
Id. at (c). Other Texas Courts of Appeals have addressed facial constitutional challenges
to the district clerk's fee and have upheld the fee as constitutional. See Thornton v. State,
No. 05-17-00220-CR, 2018 Tex. App. LEXIS 4182, 2018 Tex. App. LEXIS 4182, at *7-8 (Tex.
App.—Dallas June 11, 2018, no pet.) (not designated for publication); Davis v. State, 519
S.W.3d 251, 257 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd). See also King v. State,
No. 11-17-00179-CR, 2021 Tex. App. LEXIS 5411, at *6 (Tex. App.—Eastland July 8, 2021,
no pet. h.) (not designated for publication). We agree with those discussions and
holdings and conclude that the provision authorizing the district's clerk's fee is not
facially unconstitutional.
—Jury Reimbursement Fee
The jury reimbursement fee was required by former article 102.0045 of the Texas
Code of Criminal Procedure which provided:
A person convicted of any offense, other than an offense relating to a
pedestrian or the parking of a motor vehicle, shall pay as a court cost, in
addition to all other costs, a fee of $4 to be used to reimburse counties for
the cost of juror services . . . .
Former TEX. CRIM. PROC. art. 102.0045(a). Pursuant to subsection (b), the clerk of the court
“shall remit” these collected fees to the comptroller, who then “shall deposit the fees in
Jackson v. State Page 6
the jury service fund." Id. art. 102.0045(b).
The Eastland Court of Appeals has recently held former article 102.045 is not
facially unconstitutional. King v. State, No. 11-17-00179-CR, 2021 Tex. App. LEXIS 5411,
at *7 (Tex. App.—Eastland July 8, 2021, no pet. h.) (not designated for publication). In
King, the Court noted that, pursuant to the Texas Government Code, if a county filed a
claim for reimbursement of jury services, the State reimbursed the county for the cost of
juror services. See TEX. GOV’T CODE § 61.0015(a), (b); Id. The comptroller paid these
claims for reimbursement from money collected under former article 102.0045 of the
Code of Criminal Procedure and deposited in the jury service fund. Id. §§ 61.0015(c),
61.001; King, 2021 Tex. App. LEXIS 5411, at *7. Thus, the Court concluded, the funds
collected and paid reimbursed counties for the cost of juror services, which necessarily
included services pertaining to criminal juries. See Former CODE CRIM. PROC. art.
102.0045(a); King, 2021 Tex. App. LEXIS 5411, at *7; Johnson v. State, 562 S.W.3d 168, 179
(Tex. App.—Houston [14th Dist.] 2018, pet. ref'd) (jury expenses "include those pertaining
to criminal juries").
We agree with King’s assessment of the statutes and former Code provision and,
likewise, hold that the jury reimbursement fee is for a legitimate criminal justice purpose
and is not facially unconstitutional. Further, although Jackson did not have a jury trial,
we also find that this type of cost specifically falls within the constitutionally permissible
category of costs that are to be expended to offset future criminal justice costs. See Allen
v. State, 614 S.W.3d 736, 744 (Tex. Crim. App. 2019).
Jackson v. State Page 7
—Indigent Defense Fund
Former Section 133.107 of the Texas Local Government Code required the
payment of the indigent defense fee. Former LOC. GOV'T § 133.107. Subsection (a)
provides, in relevant part:
A person convicted of any offense, other than an offense relating to a
pedestrian or the parking of a motor vehicle, shall pay as a court cost, in
addition to other costs, a fee of $2….
Id. § 133.107 (a). The fee collected is used to fund indigent defense representation (which
is not defined) through the fair defense account established under Section 79.031 of the
Texas Government Code. Id. After the comptroller receives the indigent defense fee,
subsection (b) of former section 133.107 provides that the comptroller “shall credit the
remitted fees to the credit of the fair defense account…." Id. § 133.107(b). The fair defense
account is “an account in the general revenue fund that may be appropriated only to:
(1) the commission for the purpose of implementing [Chapter 79]; and
(2) the office of capital and forensic writs for the purpose of implementing
Subchapter B, Chapter 78."
TEX. GOV'T CODE § 79.031.
Chapter 79 of the Texas Government Code, entitled "Texas Indigent Defense
Commission," governs the commission's role to "develop policies and standards for
providing legal representation and other defense services to indigent defendants at trial,
on appeal, and in postconviction proceedings." Id. § 79.034(a); King v. State, No. 11-17-
00179-CR, 2021 Tex. App. LEXIS 5411, at *10 (Tex. App.—Eastland July 8, 2021, no pet.
h.) (not designated for publication). The policies and standards include, but are not
Jackson v. State Page 8
limited to, "standards governing the availability and reasonable compensation of
providers of indigent defense support services for counsel appointed to represent
indigent defendants." TEX. GOV'T CODE Id. § 79.034(a)(9); King, 2021 Tex. App. LEXIS
5411, at *10. "Indigent defense support services," as that term is used in Section
79.034(a)(9), means "criminal defense services that: (A) are provided by licensed
investigators, experts, or other similar specialists, including forensic experts and mental
health experts; and (B) are reasonable and necessary for appointed counsel to provide
adequate representation to indigent defendants." Id. § 79.001(9); King, 2021 Tex. App.
LEXIS 5411, at *10-11.
After reviewing these statutes, and like the Eastland Court of Appeals in King, we
conclude section 79.001(9) is included within the meaning of 'indigent defense
representation,' as that term is used in former section 133.107 of the Local Government
Code. See King, 2021 Tex. App. LEXIS 5411, at *11. Thus, we agree that these provisions
establish that the indigent defense fee is expended for a legitimate criminal justice
purpose, such as the right to counsel. See id. Further, we also conclude the provisions
fall within the constitutionally permissible categories of costs that either 1) reimburse
criminal justice expenses incurred or 2) are to be expended to offset future criminal justice
costs. See Allen v. State, 614 S.W.3d 736, 744 (Tex. Crim. App. 2019). As such, the former
statute is not facially unconstitutional.
3. Jackson’s argument
Jackson argues that a report from the comptroller’s website and a study from the
Office of Court Administration reflect the final destination for the challenged fees to be
Jackson v. State Page 9
in a general fund which violates the separation of power doctrine. However, we may
only look to the specific statute to determine the intended use of the funds, “not whether
they are actually used for a criminal justice purpose.” Salinas v. State, 523 S.W.3d 103, 107
(Tex. Crim. App. 2017). See also Allen v. State, 614 S.W.3d 736, 744 (Tex. Crim. App. 2019)
(“a reimbursement-based court-cost statute need not direct the collected funds to be
expended for a criminal justice purpose in order to comport with separation of powers
principles.”). We decline to hold that these cost provisions violate the separation of
powers provision simply because the government may ultimately use the funds for non-
criminal-justice purposes. See Allen, 614 S.W.3d at 744 n.9.
Accordingly, as to these three fees, Jackson has failed to satisfy his burden to
establish that it was not possible for these provisions to operate constitutionally under
any and all circumstances.
4. Agreement—Time-Payment Fee
Regarding the time-payment fee, in briefing on remand, Jackson and the State
agree that, pursuant to the Court of Criminal Appeals’ opinion in Dulin v. State, 620
S.W.3d 129, 134 (Tex. Crim. App. 2021), the assessment of a $25.00 time-payment fee in
this case was premature. Thus, the parties request that we modify the trial court’s
judgment by deleting the $25.00 time-payment fee from the costs that the district clerk
may collect and affirm the trial court’s judgment as modified. In this case, the trial court
included in its judgment an assessment of $299.00 as court cost. The bill of cost, dated
two months after the date the sentence was imposed, identified the details of the assessed
court cost. The $25.00 time-payment fee was included in those details.
Jackson v. State Page 10
After reviewing the caselaw and the record in this case, we agree that the inclusion
of a time-payment fee in the bill of cost by the clerk, in Trial Court Number CR08283
(appellate case number 10-17-00334-CR), and included in the amount of cost noted in the
judgment by the trial court, was premature. Thus, we modify both the judgment and bill
of cost in Trial Court Number CR08283 (appellate case number 10-17-00334-CR) to delete
the time-payment fee included as part of the cost in both of those documents. See Dulin
v. State, 620 S.W.3d 129 (Tex. Crim. App. 2021); Bryant v. State, No. 10-18-00352-CR, 2021
Tex. App. LEXIS 6000, at *2-3 (Tex. App.—Waco July 28, 2021, no pet. h.)(publish).
5. Conclusion
Accordingly, in light of the arguments raised, Jackson’s first issue is overruled.
The judgment and bill of cost in Trial Court Number CR08283 (appellate case number 10-
17-00334-CR), however, are modified as to the time-payment fee only.
C. Reformation of Judgments
Regarding Jackson’s third issue, the State agrees that there were no agreements
between Jackson and the State in exchange for Jackson’s guilty pleas. Nevertheless, the
judgments adjudicating guilt state the following:
(1) in case number CR08282 (appellate case number 10-17-00333-CR):
“Terms of Plea Bargain: TEN (10) YEARS INSTITUTIONAL
DIVISION, TDCJ; $1,000.00 FINE; COURT COSTS;” and
(2) in case number CR08283 (appellate case number 10-17-00334-CR):
“Terms of Plea Bargain: TWENTY-FIVE (25) YEARS INSTITUTIONAL
DIVISION, TDCJ; COURT COSTS.”
A court of appeals has authority to correct or reform a judgment to make the
record speak the truth when it has information to do so. See TEX. R. APP. P. 43.2(b); see
Jackson v. State Page 11
also Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (interpreting former Rule
of Appellate Procedure 80, the precursor to rule 43.2); French v. State, 830 S.W.2d 607, 609
(Tex. Crim. App. 1992); Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.—Dallas 1991, pet.
ref'd). Because the judgments adjudicating guilt were not the product of plea bargains
between Jackson and the State, Jackson’s third issue is sustained; and we reform each
judgment to delete the language under the heading “Terms of Plea Bargain.”
Conclusion
Because Jackson’s second and third issues are sustained and an agreement, in
which this Court concurs, was reached by the parties regarding part of Jackson’s first
issue, we affirm as modified the trial court’s Judgment of Conviction by Court—Waiver
of Jury Trial in Trial Court Number CR08282 (appellate case number 10-17-00333-CR) and
the Judgment of Conviction by Court—Waiver of Jury Trial in Trial Court Number
CR08283 (appellate case number 10-17-00334-CR).
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed as modified
Opinion delivered and filed October 20, 2021
Do not publish
[CR25]
Jackson v. State Page 12