Lee, Rashad ( 2015 )

t
S6ZI5
NO. 06-14-00112-CR
ORIGINAL
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IN THE COURT OF
CRIMINAL APPEALS
AUSTIN, TEXAS
********************************************************** .JRECELVED IN
COURT OF CRIMINAL APPEALS
RASHAD LEE,
Petitioner JUN 29 2015
VS.
the state of texas, Abet Acosta, Clerk
Respondent
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Appealed from the 76th District Court
Morris County, Texas
Trial Court No. 10,947-CR
PETITION FOR DISCRETIONARY REVIEW
RASHAD LEE #1932553
ALLRED UNIT
2101 FM 369 NORTH
IOWA PARK, TEXAS 76367
FILED IN
PRO SE COURT OF CRIMINAL APPEALS
ri.ni.3
JUL 02 2015
Abe! Acosta, Clerk
June 15, 2015
Clerk of Court of Criminal Appeals
P.O. Box 12308
Austin, Texas 78711
RE: Appeal Number 06-14-00112-CR
Lee v. State
Dear Clerk,
Enclosed, please find a true and correct copy of the Petition For
Discretionary Review and it's Appendix.
Please file and bring to the attention of the Court.
Respectfully,
Rashad Lee #1932553
Allred Unit
2101 FM 369 North
Iowa Park, Texas
76367
Ia
TABLE OF CONTENTS
Page
TABLE OF CONTENT i
INDEX OF AUTHORITIES ii
STATEMENT REGARDING ORAL ARGUMENT 1
STATEMENT OF THE CASE 1
STATEMENT OF PROCEDURAL HISTORY 2
GROUNDS FOR REVIEW 3
Issue For Review One - Whether the Sixth District Court of
Appeals' Decision Conflict with the First District Court of
Appeals' Decision on the same Issue 3
Whether the Sixth District Court of Appeals has decided an important
question of State or Federal Law that has not been, but should
be, settled by the Court of Criminal Appeals 7
ARGUMENT . 3,7
PRAYER FOR RELIEF „.««.,... «,.,.„ ..,..„...-., 8
APPENDIX (ATTACHMENT "A" COURT'S OPINION)... 10
INDEX OF AUTHORITIES
Cases
Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. :1998).... 6
Cantelon v. State, (App. 3 Dist. 2002) 85 S.W.3d 457 7
Young v. State, 95 S.W.3d 448 (Tex. App. - Houston [1st Dist] 2002)... 3,4,6,7
Statutes
Code of Criminal Procedure Art. §38.14 4,6
Code of Criminal Procedure Art. §38.141 6,7
Miscellaneous
Government Code §501.014;. 8
Government Code §501..104(b) 8
ii
STATEMENT REGARDING ORAL ARGUMENT
Oral argument;in this case would be extremely helpful in this case
in order to produce further evidence before this Court that the Petitioner
do not currently nave in possession.
STATEMENT OF THE CASE
The State conspired with Charles Taylor and DPS Officers Chris
Brook, Greg Wilson, and two other alleged officers by the name of
Perry and Lieutenant Deramus in which never testified at the trial
on behalf of the State, to build a case on Rashad Lee.
Charles Taylor testified that at the time he was in prison for delivery
of a controlled substance. (3 RR .128). Charles Taylor testified that
he purchased cocaine for the amount of $225. (3 RR 134). He further
testified that Mr. Lee and Katrina Moore were walking with a pit bill,
and that he dropped the dope because he was scared of the dog and that
the transaction happened quickly, and that he was the one that picked
the dope up. (3 RR .139).
Chris Brock testified that he equipped Taylor with audio and video
recording devices and a device that allowed law enforcement to listen
while Mr. Taylor made his purchase with Mr. Lee. (3 RR 28). He further
testified that Taylor called Mr. Lee to purchase a quarter ounce of
crack cocaine for $225, and the phone was on speakerphone (3 RR 29).
He never testified as to how they could had or could have had a speaker-
phone hooked up at a cementary. Chris Brock never testified as to whether
the money was marked they claimed to have given Charles Taylor. He never
testified that they saw two men walking down the road, one of whom had
a dog on a leash. Brock never testified to seeing Charles Taylor drop
anything (allegely dope) on the ground or pick up anything off the ground,
nor did Brock testify as to the dog making any attempt to bite Charles
Taylor, nor whether or not it appeared Charles Taylor to appear scared
of the alleged pit bill.
1.
Stephanie Johnson testified she worked for the DPS Crime Lab in Tyler,
Texas, testing Controlled Substances. (3 RR 52). Johnson claimed to have
found the substance to be an illegal Controlled Substance. (3 RR 55).
Johnson further testified that the Controlled tested to be cocaine (3
RR 56) in the amount of 2.5 grams of crack cocaine (3 RR 60), in which
she never conducted any tests to determine the percentage of cocaine
in the alleged 2.5 grams (3 RR 62), therefore, establishing evidence
that she can not say if it was actually crack cocaine.
Greg Wilson testified that he was assigned to the Criminal Investigation
Division (3 RR 89) and that he worked the buy/walk with Charles Taylor
and Rashad Lee on March 21, 2012 (3 RR 90), and that he made several
buys using Mr. Taylor as a cooperating individual (3 RR 91). Greg Wilson
also testified that it was two men walking with a dog, yet never testified
to seeing Mr Taylor dropping any dope, nor picking up anything off the
ground, nor having any fear of the pit bull. He further testified that
all equipment was accounted for and deactivated then he gave it to Agent
Brock (3 RR 93), yet never testified to any marked money being found
on Reshad Lee.
The state is currently holding and innocent man, Rashad Lee, confined
in TDCJ-ID, for a crime he never committed. There is no clear evidence
as to how Charles Taylor was in prison at the time the alleged transaction
was said to have occurred, what deal was made with him or whether he
actually made any contact with Rashad Lee, due to the State apologizing
for the quality of the video in opening remarks (3 RR 18, 20) and both
officers blamed time/date differences on the video as being mechanical
problems outside their control or expertise, and Rashad Lee not being
arrested for the charge until a year later.
STATEMENT OF PRCCEDURAL HISTORY
Rashad Lee was convicted on June 18, 2014 by Jury. The trial Judge
signed a judgment of conviction on June 18, 2Q14 by jury. The Defense
Attorney, JERRY PRATT gave Notice of Appeal.
2.
EBB B MOBLEY, counsel or appeal filed an Appellant's brief on the
5th day of December, 2014. The SIXTH COURT OF APPEALS in Texarkana,
Texas received for Review on January 7, 2015 and affirmed the trial
court's judgment on April 9, 2015. The Petition For Discretionary Review
(PDR) was due May,9, 2015. Rashad Lee. on May 1, 2015, filed a Motion
For Extension of Time to file the PDR. On May .11, 2015, The Court of
Criminal Appeals, C0A Case No. 06-14-00112-CR, extended the time to
file the PDR to July 10, 2015.
GROUNDS FOR REVIEW
ISSUE FOR REVIEW ONE
WHETHER THE SIXTH DISTRICT COURT OF APPEALS * DECISION CONFLICT
KITH ANOTHER COURT OF APPEALS' DECISION ON THE SAME ISSUE
ISSUE FOR REVIEW TWO
WHETHER THE SIXTH DISTRICT COURT OF APPEALS HAS DECIDED AN
IMPORTANT QUESTION OF STATE OR FEDERAL LAW THAT HAS NOT BEEN,
BUT SHOULD BE, SETTLED BY THE COURT OF CRIMINAL APPEALS
ARGUMENT
ISSUE FOR REVIEW ONE
Whether The SIXTH DISTRICT COURT OF APPEALS' Decision Conflict
With Another Court Of Appeals' Decision On The Same Issue
Petitioner contends that the Sixth District Court of Appeals in Texarkana,
Texas has made a ruling on the merits of his appeal contrary to the
First District Court of Appeals in Houston, Texas.
Petitioner's Appeal Counsel, EBB B. MOBLEY, raised the Ground in the
appeal brief asking the SIXTH DISTRICT COURT OF APPEALS the Question,
"Is there sufficient evidence to corroborate the testimony of the covert
agent Charles Taylor?"
The Sixth District Court of Appeals made it's decision contrary to
the First District Court of Appeals in Young v. State, 95 S.W.3d 448
(Tex. App. - Houston [1st Dist.] 2002). In the Young Court, it states,
3.
"Test for determining whether evidence is sufficient to corroborate
accomplice testimony is to eliminate all accomplice evidence and determine
whether the other inculpatory facts and circumstances in evidence tend
to connect defendant to the offense." Vernon's Ann. Texas C.C.P. art. 38.14.
Further, the Young Court stated, "In context of statute requiring
corroboration of accomplices' testimony, the testimony that is to be
eliminated from consideration is that testimony given by live witnesses
speaking under oath in Court." Vernon's Ann. Texas C.C.P. art. 38.14.
The Sixth Court of Appeals had made a ruling contrary to the Young
Court, and has failed to eliminate the testimony of the live witnesses.
Had the Sixth Court of Appeals eliminated the live witnesses' testimony
speaking under oath the Court of Appeal would have saw that there is
no evidence to connect Rashad Lee to the Crime. The facts will only
show a conspiracy to charge or convict Rashad Lee of the offense in
Question.
The Young Court was the same identical as the instant case and was reversed
due to the fact the confidential information, Hamilton Farr, was the
only one to identify the appellant in the case. As here, in the instant
case, Charles Taylor was the only one that identified Rashad Lee as
the person who sold him the dope. The officer could not say it was Lee.
Chris Brock claimed to have searched Charles Taylor to ensure there
was no drugs on him, yet he failed to search the car and there is no
testimony as such serch of the car* Young v. State, 95 S.W.3d 448 (Tex.
App.- Houston [1st Dist] 2002). In Young, the officer searched the
confidential informant and the car, and the court found there to not
be enough evidence, as we have here in the instant case.
Further, the Young Court stated that the Officer Galloway stopped
following Farr when Farr turned onto County Road 2039. The same happened
in the instant case, all officers stopped following Charles Taylor when
he turned off County Road 3108, and no one went to the location said
to have been the location the transaction allegedly occurred.
Further in the Young Court, the court found that Hamilton Farr was
arrested for selling marijuana to another confidential informant, and
that confidential informants may have incentives to create criminal
4.
cases or shade their testimony in favor of the state in hope that they
will be rewarded with greater leniency later on. I
This reviewing court must take notice that Charles Taylor was either
in prison or had charges pending for Delivery of a Controlled Substance
(3 RR 128). This was evidence and reason for Charles Taylor to falsely
testify against Rashad Lee, and that he had some type of dope connection
before claiming to come into contact with Rashad Lee. The Officer nor
the Sixth Appeal Court cannot say whether or not Taylor had dope in
the car, because the car was not searched. Lee will show the court other
reasons that he has not been connected to the case:
1) Chris Brock nor Greg Wilson has ever met Lee, therefore, neither could
say whether Charles Taylor spoke with Lee.
2) They never searched Taylor's car.
3) The money that the Agent claimed to have given Taylor was not marked,
nor was Lee found to have been in possession of any money or marked
money.
4) Neither of the officer followed Taylor to the alleged spot where
they claimed the transaction took place.
5) Neither of the officer saw Taylor being in fear of the pit bull.
6) Neither saw Charles Taylor drop any dope or bend down to pick up
any dope.
7) Rashad was not arrested until a year later, in which is evidence
the officers conspired to build a case against Lee, due to the fact
had they witnessed a dope transaction they would have immediately
arrested Lee and they could have confiscated the money or any money
that Lee may have had or held in his possession.
8) Taylor testified that it was a woman and a man walking the road,
yet Chris Brock and Greg Wilson testified that it was two men. There*s
a contradiction here that the court must look at.
9) Chris Brock and Greg Wilson, both provided different dates and times
in which the video was alleged to have been made. The state apologized
for the quality of the video in opening remarks (3 RR 18) and both
Agents blamed time/date differences in the video as being mechanical
problems outside their control or expertise.
5.
The Court must make a decision on the Code of Criminal Procedure Art.
38.141, inwhich require that the defendant conviction be based, at least
in part, upon "other evidence tending to connect" an accused with the
offense. See Young v. State, 95 S.W.3d 448 (Tex. App. - Houston [1st
Dist] 2002).
The Sixth Appeal Court failed to make considerations of the evidence
without Charles Taylor's testimony. In Blake, the court explained that
"the rule reflects a legislative determination that accomplice testimony
implicating another person should be viewed with a measure of caution,
because accomplices often have incentive to lie, such as to avoid punishment
or shift blame to another person", as we have in the instant case. See
Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. .1998).
The Sixth Appeal Court's ruling was totally contrary to the Young
Court. The Court of Criminal Appeals should first determine what the
requirements are in regards to art. 38.141 of the Code of Criminal Procedures,
due to.the Young Court using C.C.P. art. 38.14 as help in interpreting
C.C.P. art. 38.141, inwhich there is no case law. This court should
reverse this case and order Lee to be released from his unlawful confinement.
Even after the court considering the evidence without Charles Taylor's
testimony, the Court still have to delete the testimonies of Chris Brock
and Greg Wilson, for consideration is there other evidence. Young v._
State, 95 S.W.3d 448 (Tex. App. - Houston [1st Dist] 2002).
The Court;of Appeals for the Sixth District Court of Appeals can not
assume any information. There is either evidence or there's not, and
the Court can not say there is evidence when the testimonies do not
match and are contrary/inconsistent with each other. The Young Court
has set out the requirements, standards and guidelines for the Sixth
Appeals Court to conduct a fair and impartial ruling on such case as
we have now, yet the Sixth Court of Appeals have even added evidence
in the record that's not listed in the record, such as "Chad Brock"
being an officer in the case when there is no such named officer in
the record.(See Appendix "A" Court's Opinion -page 3). Further the
Appeals Court noticed that Agents could not identify the alleged two
men. (See Appendix "A" Court's Opinion - page 4). When the evidence
6.
do not connect Rashad Lee to the offense, Lee must be released from
his unlawful and illegal confinement.
Likewise here as to the Young Case, the tape recording did not connect
Lee to the cocaine transaction, nor did Lee testify at the trial, nor
could the others (officers) connect Lee to the voice, due to the fact
they did not know Lee, nor had they ever heard his voice, and the fact
that the jury was able to listen to an audio, if it worked at the time,
of a possible cocaine transaction is insufficient to connect Lee with
the commission of the offense because corrobating evidence is not sufficent
if it merely "Show the commission of the offense". The same exact situation
occurred in Young the exact same way. The Sixth Appeal Court errored
in ruling contrary to the decisions of the Young Court. See Young v.
State, 95 S.W.3d 448 (Tex. App. - Houston [1st Dist] 2002).
ISSUE FOR REVIEW TWO
Whether The Sixth District Court Of Appeals Has Decided An
Important Question Of State Or Federal Law That Has Not Been,
But Should Be, Settled By The Court Of Criminal Appeals
The Sixth Court Of Appeals has decided an important Question of law
that has failed to adequately interpret the meaning, requirements, and
essential elements of Texas Code of Criminal Procedure art. 38.141,
in which the Court of Criminal Procedures should settle the unresolved
issue, due to the fact there is no case law interpreting art. 38.141,
but art 38.141 has long required in striking similar language that the
state must present evidence to corroborate the accomplice testimony.
Cantelon v. State, (App. 3 Dist. 2002) 85 S.W.3d 457.
The Sixth District Court of Appeals relied upon art. 38.141 of the
Texas Code of Criminal Procedures to conduct it's analysis, in which
there is no case law to support the affirming of the Appeal Court's
Judgment.
The Court misconstrued the art. to say that only the commission of
the offense or what appears to be the commission of an offense is needed
to show Rashad Lee was connected to the offense.
The Court of Criminal Appeals should resolve the issue as to what
is the law in this case and it's interpretation. Art. 38.141 has not
7.
been interpreted by any case law, but article 38.14 has long required
in strikingly similar language that the state must present evidence
to corroborate the accomplices testimony. The Court of Criminal Appeals
must use this case as an outline or the law to interpret the real and
true meaning of the article, after the decision of the Court of Criminal
Appeals.
Further the Court of Appeals, Sixth District has claimed to not have
jurisdiction over Lee's Due Process argument, when in fact, the Court
of Criminal Appeals should address the issue because it has not been
addressed.
The Government Code §501.104(b) requires a certain amount of procedural
due process before withdrawal of funds from inmate trust account. The
Sixth District Appeals Court made the ruling, and now is making ruling
contrary to it's prior ruling on the same issue.
The Court Clerk prepared and filed a bill of costs on June 18, 2014,
ordering TDCJ to withdraw funds from the Inmate Trust Fund Account of
Rashad Lee without providing notice of removing or attempting to remove
the funds.
The Sixth Court of Appeals errored in making it's finding/affirming
of the Ground based upon a statute that the Appellate Brief never raised.
The Court of Appeals used the Government Code, Section 501.014, when
in fact the Government ruled upon was contrary to the Ground and Code
raised and argued in the Appellate's brief. (See Appendix "A" Court's
Opinion at page 6, 8).
The Appeals Court would have jurisdiction due to this being a Criminal
Case. If the Court of Appeals do not have jurisdiction, them the Government
Code used do not apply and any and all funds that has been deducted from
Lee's account must be returned.
PRAYER FOR RELIEF
Lee prays that this Court will reverse and remand this case or release
him from further unlawful confinement after a thorough and foregoing
review of the factual Issues for review has been reviewed by this Court
8.
and the Court find that the Issues For Review has established that the
Sixth Court of Appeals has errored in it's findings and ruled contrary
to the First Court of Appeals and order the Court to release him from
his unlawful confinement.
Executed on this Jjj day of June, 2015.
Respectfully Submitted
Rashad Lee #1932553
Allred Unit
2101 FM 369 North
Iowa Park, Texas
76367
CERTIFICATE OF SERVICE
I Rsshad Lee, do certify that a true and correct copy of this Petition
For Discretionary Review was mailed to: Clerk - Court of Criminal Appeals,
P.O. Box 12308, Austin, Texas 78711, by U.S. Mail, post pre-paid on
this 15th day of June, 2015.
%/j^ru/^i
Rashad Lee
9,
APPENDIX "A" TO PDR
NO. 06-14-00112-CR
(ATTACHMENT "A" - COURT'S OPINION)
10.
In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-14-00112-CR
RASHAD LEE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 76th District Court
Morris County, Texas
Trial Court No. 10,947CR
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Burgess
MEMORANDUM OPINION
While working as a confidential informant for the Texas Department of Public Safety
(TDPS), Charles Taylor purchased crack cocaine from Appellant, Rashad Lee. After completing
the transaction, Lee was arrested and charged with delivery of a controlled substance. At his trial,
the jury found Lee guilty and sentenced him to serve forty years in the Correctional Institutions
Division of the Texas Department of Criminal Justice. The jury also imposed a $5,000.00 fine.
The trial court imposed sentence in open court and remanded Lee to custody. The next day, the
trial court signed the judgment of conviction and an order requiring the withdrawal of funds from
Lee's inmate account for payment of the fine and court costs.
In his first point of error, Lee argues that the State's evidence fails to adequately
corroborate the confidential informant's testimony because it does not tend to connect him to the
commission of the crime as required by Article 38.141 of the Texas Code of Criminal Procedure.
See Tex. Code Crim. Proc. Ann. art. 38.141 (West 2005). In his second point oferror, Lee argues
that the State denied him due process by ordering the withdrawal of funds from his inmate account
without notice or a hearing. Because we find the corroborating evidence satisfied Article 38.141 's
requirements, we overrule Lee's first point of error. Because Lee failed to properly present his
second point of error, we overrule that point as well.
I. First Point of Error: Insufficient Corroborating Evidence
A. Applicable Facts
Taylor telephoned Lee and set up a meeting to purchase one-quarter of an ounce of crack
cocaine for $225.00 Lee told Taylorto meet him at a particular location neara cemetery. He also
told Taylor he would be walking a dog and would meet him there. TDPS Investigating Agent
Chad Brock and three other officers listened to the call as it occurred. Brock and the other officers
accompanied Taylor to the prearranged location.
Before arriving at the location, Agent Brock searched Taylor to verify that he had no drugs
or money, and he did not. Brock provided Taylor with a key fob containing a video camera so that
he could recordthe transaction. He also gave him $225.00 in cash to purchase the cocaine. Brock
and the other officers followed Taylorat a distance so that they could provide assistance to Taylor
if something went wrong during the transaction. They saw Taylor meet a man walking his dog
and watched them walking together. When he reconnected with the officers, Taylor produced a
baggie, which was later determined to contain approximately 2.56 grams of cocaine. He did not
have in his possession any of the money given to him by Brock.
B. Standard of Review
In a case such as this, any testimony from a confidential informant must be corroborated
by other evidence tending to connect the defendant with the alleged offense. Tex. Code Crim.
PROC. Ann. art. 38.141. We review confidential informant corroboration in the same manner and
by the same measure as we would review the testimony from an accomplice witness. Malone v.
State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008).
To adequately corroborate Taylor's testimony,
"[a]ll the lawrequires is that there be some [other] evidence which tends to connect
the accused to the commission of the offense. While individually these
circumstances might not be sufficient to corroborate the [confidential informant]
testimony, taken together, rational jurors could conclude that this evidence
sufficiently tended to connectappellant to the offense."
Cantelon v. State, 85 S.W.3d 457, 460-61 (Tex. App.—Austin 2002, no pet.) (quoting Hernandez
v. State, 939 S.W.2d 173, 178-79 (Tex. Crim. App. 1997)). "To determine the sufficiency of the
corroboration, we eliminate the testimony of the [confidential informant] and ask whether other
inculpatory evidence tends to connect the accused to the commission ofthe offense, even if it does
not directly link the accused to the crime." Id. at 461 (citing McDuffv. State, 939 S.W.2d 607,
612 (Tex. Crim. App. 1997)). We must view the corroborating evidence in the light most favorable
to the verdict. Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994) (reviewing sufficiency of
accomplice witness testimony); Ivery v. State, No. 06-13-00250-CR, 2014 WL 3906192, at *1
(Tex. App.—Texarkana Aug. 12, 2014, no pet.) (mem. op., not designated for publication).
C. Analysis
The record reveals several items of evidence that would tend to connect Lee to the offense,
even if Taylor's testimony were eliminated. First, Taylor placed a telephone call to Lee to arrange
the transaction. Lee told Taylor where to meet him and that he would be walking a dog. Brock
and the other officers listened to that telephone conversation and testified as to its contents. Brock
also testified that when they arrived at the agreed upon location, he saw two men walking down
the road, one of whom had a dog on a leash. Although Brock was not asked if he was able to
identify the men, the general description was consistent with the information revealed in Taylor's
telephone conversation with Lee.
The State also introduced an audio/video recording and still image screen captures from
that recording, introduced as photographs, to corroborate Taylor's testimony. The audio/video
recording depicts a person identified as Lee walking with another person who was walking a dog
and records these individuals' encounter with Taylor. The recording itself shows them meeting
andtalking; it also shows their movements, including contact between their hands. The still image
screen captures consist of three relevant photographs. In those images, it appears that Lee has
something in his hand that could be a plastic baggie. The images also show that Lee's hand was
empty after his contact with Taylor.
Finally, Lee arranged to sell Taylor one-quarter of an ounce of cocaine for$225.00. Taylor
was searched immediately prior to his encounter with Lee, and he had no money or illegal drugs
in his possession. After giving Taylor $225.00, Agent Brock released him to meet Lee; upon
returning, Taylor was again searched and was found to possess a baggie ofwhat was later identified
as 2.56 grams of cocaine. Taylor did not have the $225.00 upon the second search. Accordingly,
we conclude that the evidence is sufficient to tend to connect Lee to the commission ofthe offense
as required by Article 38.141. The evidence istherefore sufficient to support the jury verdict, and
Lee's first point of error is overruled.
II. We Do Not Have Jurisdiction Over Lee's Claims Related to the Notice of Withdrawal
of Funds from His Inmate Account
A. Lee's Due Process Argument
Lee argues that the order directing the collection of a fine and court costs from his inmate
account was entered in a manner that violated his right to due process of law. In the summary of
his argument, Lee recites the following procedural facts:
The trial judge signed a judgment of conviction by a jury on June 18, 2014. The
court clerk prepared and filed a bill of costs on June 18, 2014. The court clerk
notified appellant [sic] counsel of his appointment by mail dated June 19, 2014.
Thereafterf,] the court clerk filed an order to withdraw funds and dated June 19,
2014[,] but filed on June 20, 2014. The basis for the order is shown to be
Government Code §501.014[(e)].
In his argument proper, Lee contends, "The order at bar, as well as the appellate record,
show no evidence of prior notice to Rashad Lee, his trial counsel or his appellate counsel that any
monetary assessment was sought or even at issue in a case where he had been represented by
appointed counsel from the beginning." The complained-oforder attached as Appendix A to his
Brief is entitled "Order to Withdraw Funds" and reflects that "THE COURT ENTERS THIS
ORDER pursuant to Government Code, Section 501.014, on this 19th day of June, 2014."
B. We Cannot Address Lee's Argument in this Direct Appeal from Lee's
Criminal Conviction
The Texas Court of Criminal Appeals has held that when an appellant challenges the basis
for assessment of court costs authorized by criminal statutes on direct appeal of his or her criminal
conviction, the cost challenge claim "arises over the enforcement ofstatutes governed by the Texas
Code ofCriminal Procedure, thereby making it a criminal matter." Armstrong v. State, 340 S.W.3d
759, 766 (Tex. Crim. App. 2011); see Johnson v. State, 423 S.W.3d 385, 388 (Tex. Crim. App.
2014) (holding that cost challenge to assessment of costs mandated by criminal statutes may be
raised for first time on appeal, and that, if necessary, record can be supplemented with cost bill
even if cost bill is created after fact). Likewise, in Mayer v. State, 309 S.W.3d 552 (Tex. Crim.
App. 2010), the Texas Court of Criminal Appeals held that an appellant may challenge the
sufficiency of the evidence supporting a trial court's assessment of court-appointed attorney fees
on direct appeal of the criminal conviction without raising the issue in the trial court first.
Here, Lee's argument fails to raise either a challenge to the basis of the court costs assessed
or a complaint about the evidentiary sufficiency of the assessment of court costs or attorney fees.
Instead, Lee challenges the collection of the costs by questioning whether the trial court's notice
of withdrawal violated due process requirements. Lee supports his argument by citing to three
cases; however, all three of these cases suggest that Lee's point of error cannot be raised in this
direct appeal. The first case cited by Lee is a civil appeal in which this Court decided that a due
process complaint related to the collection of costs is a civil matter. See generally Abdullah v.
State, 211 S.W.3d 938 (Tex. App.—Texarkana 2007, no pet.). In the second case Lee cites, the
Texas Court of Criminal Appeals found that it lacked jurisdiction to address a complaint similar
to the one Lee raises here because the complaint did not involve "criminal law matters." Johnson
v. Tenth Judicial Dist. Court ofAppeals at Waco, 280 S.W.3d 866, 874 (Tex. Crim. App. 2008)
(orig. proceeding). Finally, the last case cited by Lee merely clarified that a defendant must
challenge the sufficiency of the evidence supporting an assessment of court costs in a deferred-
adjudication order by a timely-filed direct appeal of that order deferring adjudication and assessing
the contested costs. Perez v. State, 424 S.W.3d 81, 86 (Tex. Crim. App. 2014). Perez further
clarified that it is too late to challenge such costs in an appeal ofa subsequent order ofadjudication.
Id. Again, because Lee is not challenging the sufficiency of the evidence supporting the assessed
court costs, Perez is inapplicable.
The line of cases discussing cost challenges raised for the first time on appeal of criminal
convictions beginning with Armstrong and leading to Perez dealt exclusively with challenges to
the assessment of court costs under the Texas Code of Criminal Procedure, not the collection of
costs under the Texas Government Code. Lee does not complain that the legal or factual bases for
the costs were insufficient, but rather that the manner in'which those costs were collected in this
case deprived him of due process.
Lee's appellate argument directly invokes the JTexas Government Code. The Texas
Supreme Court and the Texas Court of Criminal Appeals have both held that challenges to the
i
manner or means of collecting court costs under Section 501.014(e) of the Texas Government
i
Code are civil matters. See Johnson, 280 S.W.3d at 866; Harrell v. State, 286 S.W.3d 315 (Tex.
2009). In a concurring opinion in Perez, Judge Alcala made this point clear: "Proceedings under
GovernmentCode section 501.014(e) to recover court fees and costs assessed against inmates are
civil in nature and are not part of the underlying criminal case." Perez, 424 S.W.3d at 89 (Alcala,
i
J., concurring). Nothing in Perez or the line of cases leading up to it would authorize an appellant
to raise an issue concerning the collection of costs under Section 501.014(e) of the Texas
Government Code in a direct appeal of a criminal conviction.1 Accordingly, we do not have
jurisdiction to address Lee's complaint in this appeal.
Moreover, because (1) the notice ofwithdrawal is not a final, appealable order, and (2) Lee
failed to raise his civil issue with the trial court, this Court would not have civil jurisdiction to
address the merit of Lee's complaint, even if properly before us. Notwithstanding the fact that the
document Lee is challenging is entitled "Order to Withdraw Funds," previous cases make it clear
that this is a notice, not an order. See Goodspeed v. State, 352 S.W.3d 714, 715 (Tex. App.—
'Further, in Armstrong, the Texas Court of Criminal Appeals specifically noted that "Appellant does not contest any
withdrawal order issued by the trial court pursuant to the Texas Government Code or any other collection effort.
Instead, Appellant contests the assessment of the costs and the sufficiency of theevidence to support theattorney fees
mandated by the bill of costs." Armstrong, 340 S.W.3d at 766 (emphasis added).
8
Texarkana 2011, pet. denied) (citing Harrell, 286 S.W.3d at 316 n.l).2 In order to secure a final,
appealable order on the matter, a defendant must first raise any issue regarding the collection of
costs with the trial court. Id. (citing Jewell v. State, No. 06-10-00114-CV, 2011 WL 1642769, at
*1 (Tex. App.—Texarkana Apr. 29, 2011, no pet.) (mem. op.) ('"The trial court's ruling on the
inmate's contest [to a withdrawal notification] is what can be appealed.'")); see Williams v. State,
332 S.W.3d 694, 698 (Tex. App.—Amarillo 2011, pet. denied) (citing Ramirez v. State, 318
S.W.3d 906, 908 (Tex. App.—Waco 2010, no pet.) (holding "[o]nly when [the withdrawal
notification is] properly challenged and denied relief is there a trial court order that is final from
which the inmate . . . can appeal")). Here, because Lee failed to secure an order from the trial
2For example, in Webb v. State, 324 S.W.3d 229 (Tex. App.—Amarillo 2010, pets, denied) (per curiam), theCourt of
Appeals noted,
This document is not an "order'' in the traditional sense of a court order, judgment, or decree issued
after notice and hearing in either a civil or criminal proceeding. The controlling statute, TEX. GOV'T
CODE ANN. § 501.014(e) ([West] Supp. 2009), describes the process as a "notification by a court"
directing prison officials to withdraw sums from an inmate's trust account, in accordance with a
schedule of priorities set by the statute, for the payment of "any amount the inmate is ordered to pay
by order of the court." This document is more akin to a judgment nisi. A judgment nisi, commonly
used in bond forfeiture proceedings, is a provisional judgment entered when an accused fails to
appear for trial. A judgment nisi triggers the issuance of a capias and it serves as notice of the
institution of a bond forfeiture proceeding. It is not final or absolute, but may become final. Nisi
means "unless," so a judgment nisi is valid unless a party takes action causing it to be withdrawn.
Similarly, a withdrawal notification issued pursuant to section 501.014(e), triggers a trust fund
withdrawal, serves as notice of the collection proceeding, and continues to operate unless the inmate
takes action causing the notification to be withdrawn. Therefore, rather than refer to that document
as an order, we prefer to use the term "withdrawal notification" to avoid confusion with an
underlying court order or judgment ordering the payment of a sum falling within at least one of the
six priority categories listed in the statute.
Id. at 230, n.l (citations omitted).
L
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court addressing his civil law issue, we would lackjurisdiction to hear Lee's argument, even had
he raised the issue in a separate, civil appeal.3
Because we find no error related to the judgment of conviction entered in this matter, we
affirm thatjudgment. Because we lackjurisdictionto hear Lee's pointof error concerning the trial
court's Order to Withdraw Funds, we dismiss Lee's second point of error for want ofjurisdiction.
Ralph K. Burgess
Justice
Date Submitted: January 7, 2015
Date Decided: April 9, 2015
Do Not Publish
•5
We note that Lee's notice of appeal states that Lee "wishes to appeal from the conviction to the Sixth Court of
Appeals on errors raised by written motion and ruled on before trial and on errors arising during and subsequent to
trial." Rule 25.1 of the Texas Rules of Appellate Procedure addressing perfection of an appeal in civil cases, requires
a notice of appeal to identify the date of the judgment or order appealed. Tex. R. App. P. 25.1(d). Lee's notice of
appeal was filed pursuant to Rule 25.2 of the Texas Rules of Appellate Procedure since it (1) clearly states that he is
appealing his conviction, and (2) fails to state that he is appealing from any order or judgment related to his civil
complaint. In the absence of a specific designation of the "judgment or order appealed from" as required by Rule
25.1(d)(2), we will not presume that a notice of appeal filed on direct appeal of a criminal case also invokes this
Court's civil jurisdiction.
10