Darien Donie Wilson v. State

ACCEPTED
12-17-00351-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
1/19/2018 2:19 PM
Pam Estes
CLERK
FILED IN
SMITH COUNTY COURTHOUSE
100 N. BROADWAY 4th Floor
D. Matt Bingham 12thTELEPHONE:
COURT OF APPEALS
TYLER, TEXAS
TELECOPIER:
(903) 590-1720
(903) 590-1719
TYLER, TEXAS 75702 Criminal District Attorney 1/19/2018
Michael2:19:33 PM Chief
J. West, Appellate
April Allison Sikes, First Assistant
Smith County PAM ESTES
Jennifer Barfield, Office Director
Clerk
January 19, 2018
12th Court of Appeals
1517 West Front Street, ste. 354
Tyler, Texas 75702
Re: 12-17-00351-CR, Wilson v. State - State’s Letter Brief.
To the 12th Court of Appeals:
In this case, Darien Wilson was arrested for breaking into a Tyler store to
commit theft after the shop had closed for the evening. (1 C.R. at 1.) He
was represented by counsel and pleaded guilty to burglary of a building.
(1 C.R. at 45.) On March 3, 2017, the 7th District Court placed him on
probation and assessed $539 in court costs. (1 C.R. at 57.) Last fall, the
court revoked Wilson’s probation and sentenced him to 9 months’
confinement in a state jail facility. (1 C.R. at 87.) On December 5, 2017,
the $539 bill of costs was finally added to the record, revealing a $250
DNA testing fee for sexual offenses. (1 C.R. at 92.) On appeal, Wilson’s
sole complaint relates to this fee. (Appellant Br. at 4.)
Ordinarily, a defendant placed on community supervision may raise issues
relating to the original plea proceeding, such as evidentiary sufficiency,
only when community supervision is first imposed. Manuel v. State,
994 S.W.2d 658, 661-662 (Tex. Crim. App. 1999). Specifically, this entails
filing a notice of appeal within 30 days after a sentence is imposed. Tex. R.
App. P. 26.2(a)(1). If the defendant fails to do so, his complaint will
normally be subject to procedural default. Manuel, 994 S.W.2d at 662.
Although there is no evidence that Wilson ever sought permission to appeal
any aspect of his probation order, procedural default rules depend on an
appellant’s knowledge of, and failure to challenge, an issue. Riles v. State,
452 S.W.3d 333, 337 (Tex. Crim. App. 2015). In this case, the trial court
did not produce a bill of costs until after Wilson had already been
sentenced, and his crime has no sexual component. (1 C.R. at 1, 57, 87, 92.)
In short, there is no reason to suspect that Wilson knew or had any reason
to know that he was being charged a fee for sexual offense DNA testing.
Consequently, the State must concede both that Wilson did not waive his
complaint and also that he was overcharged for DNA testing. There is, in
fact, a DNA testing fee for a defendant who is convicted of a felony and
placed on community supervision. Tex. Code Crim. Proc. Ann. art.
102.020(a) (West 2016). It is $34, not $250. Ibid.
When a reviewing court has the necessary information, a judgment may be
reformed on appeal. Brewer v. State, 572 S.W.2d 719, 723 (Tex. Crim. App.
1978); Tex. R. App. P. 43.2 (b). Here, this Court should modify Wilson’s bill
of costs to accurately reflect what he owes under Tex. Code Crim. Proc. Ann.
art. 102.020(a) (West 2016).
Yours truly,
Sarah Bales Mikkelsen
Asst. Criminal District Attorney
Bar I.D. No. 24087139
100 N. Broadway, 4th Fl.
Tyler, Texas 75702
(903) 590-1720
(903) 590-1719 (fax)
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CERTIFICATE OF COMPLIANCE
The State’s Reply Brief contains 623 words, in compliance with Texas
Rule of Appellate Procedure 9.4.
_________________________
Sarah Bales Mikkelsen
Asst. Criminal District Attorney
Bar I.D. No. 24087139
CERTIFICATE OF SERVICE
On January 19, 2018, the following have been completed:
(1) The original of the State’s Letter Brief in Response to Appellant’s Brief
in the above numbered cause has been electronically filed with the
12th Court of Appeals clerk.
(2) A legible copy of the State’s Letter Brief in Response to Appellant’s
Brief in the above numbered cause has been electronically served to
James Huggler, Jr. at jhugglerlaw@sbcglobal.net.
_________________________
Sarah Bales Mikkelsen
Asst. Criminal District Attorney
Bar I.D. No. 24087139
100 N. Broadway, 4th Fl.
Tyler, Texas 75702
(903) 590-1720
(903) 590-1719 (fax)
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