Willie Lee Amie, Jr. v. State

ACCEPTED
02-15-00385-CR
SECOND COURT OF APPEALS
FORT WORTH, TEXAS
12/17/2015 4:08:08 PM
DEBRA SPISAK
CLERK
NOS. 02-15-00385-CR
02-15-00386-CR
________________________________ FILED IN
IN THE COURT OF APPEALS 2nd COURT OF APPEALS
FORT WORTH, TEXAS
FOR THE SECOND JUDICIAL DISTRICT 12/17/2015 4:08:08 PM
OF TEXAS AT FORT WORTH DEBRA SPISAK
________________________________ Clerk
WILLIE LEE AMIE, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________
On Appeal from Criminal District
Court No. Two of Tarrant County, Texas
the Honorable Wayne Salvant
Presiding in Cause Nos. 1394034D & 1411402D
_____________________________________
APPELLANT’S BRIEF
Abe Factor
TBN: 06768500
Factor, Campbell & Collins
Attorneys at Law
5719 Airport Freeway
Fort Worth, Texas 76117
Phone: (817) 222-3333
Fax: (817) 222-3330
Attorney for Appellant
Willie Lee Amie, Jr.
NO ORAL ARGUMENTS REQUESTED
IDENTITY OF PARTIES AND COUNSEL
The following is a complete list of parties to the trial court’s
judgment, with names and addresses of all trial and appellate counsel.
Trial Judge: Hon. Wayne Salvant, presiding judge,
Criminal District Court No. Two
Appellant: Willie Lee Amie, Jr.
Appellant’s Trial Counsel: Benson Varghese
TBN: 24063683
Steven Jumes
TBN: 00796854
Varghese Summersett PLLC
420 Throckmorton, Suite 200
Fort Worth, TX 76102
Appellant’s Counsel Abe Factor
on Appeal: TBN: 06768500
Factor, Campbell & Collins
5719 Airport Freeway
Fort Worth, Texas 76117
Appellee: The State of Texas
Appellee’s Trial Counsel: Vincent Giardino
TBN: 24072939
Julie Harbin
TBN: 24074353
Assistant Criminal District Attorneys
401 West Belknap
Fort Worth, Texas 76196
Appellee's Counsel Debra Windsor
on Appeal: TBN: 00788692
Assistant Criminal District Attorney
401 West Belknap
Fort Worth, Texas 76196
TABLE OF CONTENTS
page
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . .i
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iii
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
POINTS OF ERROR PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. Section 133.102(a)(1) of the Texas Local Government
Code by which the “consolidated court cost” was
assessed is unconstitutional . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
A. Preservation of Error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
B. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
C. Article 133.102(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
D. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ii
TABLE OF AUTHORITIES
cases page
Armstrong v. State,
340 S.W.3d 759 (Tex. Crim. App. 2011). . . . . . . . . . . . . . . . . . . . 11
Curry v. State,
186 S.W.3d 39 (Tex. App.–Houston [1st Dist.] 2005, no pet.).6, 7
Ex Parte Carson,
143 Tex. Crim. 498, 159 S.W.2d 126 (1942). . . . . . . . . 9, 10, 11, 12
Ex Parte Lo,
424 S.W.3d 10 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . . . . . . . 6
Johnson v. State,
423 S.W.3d 385 (Tex. Crim. App. 2014). . . . . . . . . . . . . . . . 4, 5, 11
Lawson v. State,
283 S.W.3d 438 (Tex. App.–Fort Worth 2009, pet. ref’d). . . . . . .6
State v. Rosseau,
396 S.W.3d 550 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . . . . 6, 7
Lopez v. State,
253 S.W.3d 680 (Tex. Crim. App. 2008). . . . . . . . . . . . . . . . . . . . . 4
Maloney v. State,
294 S.W.3d 613 (Tex. App.–
Houston [1st Dist.] 2009, pet. ref’d). . . . . . . . . . . . . . . . . . 6
Mayer v. State,
309, S.W.3d 552 (Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . . . 5
Peraza v. State,
467 S.W.3d 508 (Tex. Crim. App. 2015, cert. filed). . . . . . . . . . . .4
iii
Santikos v. State,
836 S.W.2d 631 (Tex. Crim. App. 1992). . . . . . . . . . . . . . . . . . . . . 6
Constitutions
T EX. C ONST. art. II § 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
T EX. C ONST. art. V, § 5(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
Statutes
T EX. C RIM. P ROC. C ODE A NN. § 26.05(g) (West Supp. 2015). . . . . . . . . . 5
T EX. G OV’T C ODE A NN. § 501.014 (West 2012). . . . . . . . . . . . . . . . . . . . . 2
T EX. L OC. G OV’T C ODE A NN. § 133.102(a)(1) (West Supp. 2015). . . . 7, 8
T EX. L OC. G OV’T C ODE A NN. § 133.102(b) (West Supp. 2015). . . . . . . . 8
T EX. L OC. G OV’T C ODE A NN. § 133.102(e) (West Supp. 2015). . . . . . . . .8
T EX. P ENAL C ODE A NN. § 29.02(a)(1)(West 2011). . . . . . . . . . . . . . . . . . .1
Court Rules
T EX. R. A PP. P. 25.2(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Tex. R. App. P. 33.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Other Sources
Tex. Atty. Gen. Op., No.JC-0158 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . .1 1
iv
STATEMENT OF THE CASE
On March 18, 2015, Appellant Willie Lee Amie, Jr. (“Mr. Amie”
or “Appellant”) was indicted for the second degree felony offense of
robbery, alleged to have occurred on November 21, 2014. [034 C.R. 5);1
see T EX. P ENAL C ODE A NN. § 29.02(a)(1)(West 2011). On June 05, 2015,
Mr. Amie was indicted for another second degree felony offense of
robbery, alleged to have occurred on April 18, 2015. [402 C.R. 4];2 Id. On
October 6, 2015, Mr. Amie entered a plea of guilty before the jury to
each case. [II R.R. 135, 137]. Punishment was to the jury, which
sentenced Mr. Amie to two, concurrent terms of fifteen (15) years
incarceration in the Texas Department of Criminal Justice–Institutional
Division. [III R.R. 28, 29]. Timely notices of appeal were filed on
October 7, 2015. [034 C.R. 45; 402 C.R. 30]. This appeal ensued.
1
Citations to the Clerk’s Record in Cause Number 1394034D will be
designated as “034 C.R. xx.”
2
Citations to the Clerk’s Record in Cause Number 1411402D will be
designated as “402 C.R. xx.”
1
POINTS OF ERROR PRESENTED
POINT OF ERROR ONE
I. Section 133.102(a)(1) of the Texas Local Government Code by
which the “consolidated court cost” in the amount of $133 was
assessed is unconstitutional.
STATEMENT OF FACTS
On October 6, 2015, Mr. Amie entered a plea of guilty before the
jury to each case. [II R.R. 135, 137]. Punishment was to the jury, which
heard evidence and argument from the State and the Defense. [II R.R.
passim; III R.R. passim]. At the close of the punishment phase, the jury
sentenced Mr. Amie to two, concurrent terms of fifteen (15) years
incarceration in the Texas Department of Criminal Justice–Institutional
Division. [III R.R. 28, 29]. Assessed as a court cost against Mr. Amie in
each case was a “Consolidated Court Cost” in the amount of $133. [034
C.R. 43; 402 C.R. 28]. Incorporated into each of the Judgments was an
“Order to Withdraw Funds” relating to Mr. Armie’s inmate trust fund
directing that $309.00 be taken pursuant to the statutory scheme for the
State of Texas to withdraw funds from his inmate trust fund. [034 C.R.
42; 402 C.R. 27]. See T EX. G OV’T C ODE A NN. § 501.014 (West 2012).
2
SUMMARY OF THE ARGUMENT
The “consolidated court costs” assessed against convicted
persons is an unconstitutional tax under the separation of powers
clause of the Texas Constitution, as the funds collected pay for the
operation of Texas courts. The judgments in each of these cases should
therefore be modified to delete the $133 charge from the assessed court
costs.
ARGUMENT AND AUTHORITIES
Jurisdiction
Pursuant to Texas Rule of Appellate Procedure 25.2(a)(2), the
Clerk’s Records contains the Trial Court’s Certifications of Defendant’s
Right of Appeal, which correctly states that these are not plea
bargained cases, and the defendant has the right to appeal. [034 C.R. 44;
402 C.R. 29]. See T EX. R. A PP. P. 25.2(a)(2).
3
POINT OF ERROR ONE (RESTATED)
I. Section 133.102(a)(1) of the Texas Local Government Code by
which the “consolidated court cost” in the amount of $133 was
assessed is unconstitutional.3
A. Preservation of Error
Rule 33.1 of the Texas Rules of Appellate Procedure generally
requires that a complaint on appeal be presented first to the trial court
below or it is waived on review.4 See T EX. R. A PP. P. 33.1. However, the
Court of Criminal Appeals has recently determined that a complaint on
appeal regarding the imposition of court costs upon the revocation of
community supervision can be raised for the first time on appeal. See
Johnson v. State, 423 S.W.3d 385, 390-91 (Tex. Crim. App. 2014). The
court pointed out that while a defendant will be sentenced in open
court, the written judgment is prepared at a later date. Id. (citation
omitted). Therefore, most defendants would not even be aware of the
3
Undersigned counsel is aware that currently-binding authority holds
directly against the argument presented here. See e.g., Peraza v. State, 467
S.W.3d 508 (Tex. Crim. App. 2015, cert. filed). The issue is presented here
to preserve for further review.
4
To preserve a complaint for appellate review, a party, at trial, must
present and obtain a ruling on the complaint that states “the grounds for
the ruling that [it] sought from the trial court with sufficient specificity to
make the trial court aware of the complaint, unless the specific grounds
were apparent from the context.” TEX. R. APP. P. 33.1 (a); see Lopez v. State,
253 S.W.3d 680, 684 (Tex. Crim. App. 2008).
4
amount of any costs or fees assessed as they are most often not assessed
in open court, nor is an itemized bill presented with which to
determine the accuracy of the assessed fees or costs. Id.
The Johnson court supported its decision by citing to its opinion
in Mayer v. State, 309, S.W.3d 552 (Tex. Crim. App. 2010). In Mayer, the
appellant challenged the imposition of attorney’s fees when his
probation was revoked. Specifically, he claimed that there was no basis
in the record to support the trial court’s determination that the
appellant had financial resources and, as a result, the ability to pay at
least a portion of the cost of his defense. Mayer, 309 S.W.3d at 552; see
also T EX. C RIM. P ROC. C ODE A NN. § 26.05(g) (West Supp. 2015)
(requiring a judicial determination of whether a defendant has the
financial resources to offset in whole, or part, the costs of the legal
services provided to the defendant). The court held that since Mayer’s
complaint on appeal argued that there was insufficient evidence that
he had the financial resources and ability to pay the assessed attorney
fees and that insufficient evidence points of error may be raised for the
first time on appeal, Mayer’s complaint was not waived by his failure
to object in the trial court. See Mayer, 309 S.W.3d at 556.
5
B. Standard of Review
Whether a statute is facially constitutional is a question of law
that an appellate court will review de novo. Ex Parte Lo, 424 S.W.3d 10,
14 (Tex. Crim. App. 2013); Lawson v. State, 283 S.W.3d 438, 440 (Tex.
App.–Fort Worth 2009, pet. ref’d). When reviewing a constitutional
challenge, the court must “presume that the statute is valid and that the
legislature was neither unreasonable nor arbitrary in enacting it.” Lo,
424 S.W.3d at 14; see also State v. Rosseau, 396 S.W.3d 550, 557 (Tex.
Crim. App. 2013). If the statute can be construed in two different ways,
one of which sustains its validity, a reviewing court will apply the
interpretation that sustains its validity. Maloney v. State, 294 S.W.3d 613,
625 (Tex. App.–Houston [1st Dist.] 2009, pet. ref’d).
The party challenging the statute bears the burden of
establishing the statute’s unconstitutionality. Rosseau, 396 S.W.3d at
557; Curry v. State, 186 S.W.3d 39, 42 (Tex. App.–Houston [1st Dist.]
2005, no pet.). “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); see
6
also Rosseau, 396 S.W.3d at 557. This Court “must uphold the challenged
statute if it can be reasonably construed in a manner consistent with the
legislative intent and is not repugnant to the Constitution.” Curry, 186
S.W.3d at 42.
C. Section 133.102(a)(1)
The trial court assessed the cost pursuant to section 133.102(a)(1)
of the Texas Local Government Code, which mandates that a person
convicted of a felony must pay $133 “as a court cost, in addition to all
other costs.” See T EX. L OC . G OV’T C ODE A NN. § 133.102(a)(1) (West
Supp. 2015). The collected amounts must be remitted to the state
comptroller, who in turn must allocate this money to fourteen specified
“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) operator’s and chauffeur’s license;
7
(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;
(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.
Id. §§ 133.102(b), (e) (West Supp. 2015). Subsection (e) provides that the
designated funds “may not receive less than” certain specified
percentages of the collected amounts. Id. Section 133.058 permits a
municipality or county to retain 10 percent of collected amounts as a
“service fee.”
D. Discussion
The trial court’s assessment of a “consolidated court cost”
against Mr. Amie violates the separation of powers clause of the Texas
8
Constitution.5 In Ex Parte Carson, 143 Tex. Crim. 498, 159 S.W.2d 126
(1942), rejected by, Peraza v. State, 467 S.W.3d 508 (Tex. Crim. App. 2015),
the Texas Court of Criminal Appeals considered whether it was
constitutionally permissible to impose a $1 fee as a court cost in all
cases filed in counties with more than eight district courts or more than
three county courts at law. Carson, 159 S.W.2d at 127. The revenue
collected from the $1 fee was directed to the “County Law Library
Fund” and “available to be used for certain costs and expenses in
acquiring, maintaining and operating a law library available to the
judges of the courts and to the attorneys of litigants.” Id. The court held
that the fee constituted an unconstitutional tax, not a legitimate court
cost, because it was “neither necessary nor incidental to the trial of a
5
Article II, § 1 of the Texas Constitution holds:
DIVISION OF POWERS; THREE SEPARATE DEPARTMENTS;
EXERCISE OF POWER PROPERLY ATTACHED TO OTHER
DEPARTMENTS. The powers of the Government of the State of
Texas shall be divided into three distinct departments, each of
which shall be confided to a separate body of magistracy, to wit:
Those which are Legislative to one; those which are Executive to
another, and those which are Judicial to another; and no person, or
collection of persons, being of one of these departments, shall
exercise any power properly attached to either of the others, except
in the instances herein expressly permitted.
TEX. CONST . art. II § 1.
9
criminal case.” Id. at 127, 130. The court cautioned that to hold
otherwise,
would lead into fields of expenditures which may as well
include the cost of the court houses, the automobiles which
officers use to apprehend criminals and even the roads upon
which they ride. If something so remote as a law library may be
properly charged to the litigant on the theory that it better
prepares the courts and the attorneys for the performance of
their duties, it occurs to us that we might as logically tax an item
of cost for the education of such attorneys and judges and even
the endowments of the schools which they attend.
Id. at 127. Like the law library fee in Carson, here the proceeds of the
consolidated court costs assessed against convicted persons is used to
provide services that are neither necessary nor incidental to the trial of
a criminal case.
Applying the Court of Criminal Appeals’ strict standard to the
statute at issue in the present case, none of the fourteen programs
funded by collection of the consolidated court cost from convicted
defendants, pursuant to section 133.102, pass constitutional muster.
Certainly, there is no indication in the record that any of the funded
items represent actual costs incurred in Mr. Amie’s trial. More
importantly, none of the fourteen is less remote in its relationship to the
court proceedings in this case than was the funding for a law library to
10
be used by judges and attorneys in Carson.
Court costs do not constitute part of the guilt or sentence of a
criminal defendant–“they are ‘a nonpunitive recoupment of the costs
of judicial resources expended in connection with the trial of a case.’”
Johnson, 423 S.W.3d at 390 (quoting Armstrong v. State, 340 S.W.3d 759,
767 (Tex. Crim. App. 2011)). Any court cost that is “neither necessary
nor incidental to the trial of a criminal case” is “not a legitimate” cost
of court. Carson, 159 S.W.2d at 127-130. Rather, such a court cost is, in
reality, a tax.
A requirement that courts assess such a cost would render the
courts “tax gatherers” in violation of the separation of powers doctrine.
This is because requiring courts to collect a tax (albeit one disguised as
a court cost) imposes an executive branch function on the judicial
branch. The Attorney General has explained in an opinion that “court
fees that are used for general purposes are characterized as taxes, and
a tax imposed on a litigant interferes with access to the courts in
violation of the constitution.” Tex. Atty. Gen. Op., No.JC-0158 (1999).
Making convicted criminals pay for certain programs, rather
than obtaining funding through other means of revenue, may seem an
11
attractive, expedient, and fair option. Nonetheless, this Court is bound
to follow the precedent established by the Court of Criminal Appeals.
See T EX. C ONST. art. V, § 5(a).
As stated, under the Court of Criminal Appeals opinion in
Carson, none of the fourteen items funded under Local Government
Code section 133.102 constitute a cost necessary or incidental to the trial
of a criminal case. See Carson, 159 S.W.2d at 130. These are therefore not
legitimate items to be assessed against criminal defendants.
Accordingly, section 133.102 is unconstitutional and the $133 should be
deleted from the trial court’s judgment.
PRAYER
PREMISES CONSIDERED, Appellant Willie Lee Amie
respectfully requests that this Court sustain the points of error in this
brief and amend the judgment in this case as set forth herein. Mr. Amie
further requests that he be granted any such further relief to which he
may show himself justly entitled.
Respectfully submitted,
/s/ Abe Factor
Abe Factor
TBN: 06768500
Factor, Campbell & Collins
12
Attorneys at Law
5719 Airport Freeway
Fort Worth, Texas 76117
Phone: (817) 222-3333
Fax: (817) 222-3330
Attorney for Appellant
Willie Lee Amie, Jr.
CERTIFICATE OF COMPLIANCE
I hereby certify that the word count for the portion of this filing
covered by Rule 9.4(i)(1) of the Texas Rules of Appellate Procedure is
3,048.
/s/Abe Factor
Abe Factor
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument
has been furnished to counsel for the State/Appellee either by a
manner compliant with the rules on this 17th day of December, 2015.
/s/ Abe Factor
Abe Factor
13