Aldana, Jose L.

Court of Appeals of Texas·Decided August 4, 2015·No. PD-0725-15·Published

Opinion

PD-0725-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS August 4, 2015 Transmitted 8/3/2015 10:44:36 PM Accepted 8/4/2015 7:50:29 AM In the ABEL ACOSTA CLERK Court of Criminal Appeals of Texas ! Jose L. Aldana, appellant v. No. PD-0725-15 The State of Texas, appellee ! ! ! Reply to the State’s Petition for Discretionary Review

! To the Honorable Court of Criminal Appeals of Texas:

Jose L. Aldana, Appellant below, files this response to the State’s Peti-

tion for Discretionary Review in this cause and shows as follows:

Introduction

The jury acquitted Aldana of two counts and convicted him of three.1

In addition to being sentenced to prison, Aldana was assessed a $3,000

fine on each count of conviction.2 On appeal, he challenged the inclu-

sion of the $3,000 fine in each judgment. The El Paso Court of Appeals

1 CR at 172–88. 2 CR at 174, 179, 184.

! Reply to the State’s Petition for Discretionary Review Page 1 of 12 reformed two judgments by deleting the fine on each.3 The State is now

seeking review by this Court of that decision. Aldana doesn’t think re-

view is warranted for the following reasons.

First, there’s no disagreement on this issue between the courts of

appeals. The only two appellate courts to consider this issue have

agreed. Second, the State’s concerns actually hinge on TDCJ’s not fol-

lowing the trial court’s direction. Third, court costs are included in

only one judgment to avoid duplication in cases with multiple convic-

tions; including fines only on one judgment is consistent with the han-

dling of court costs. Fourth, objecting prospectively or to something

unseen is impractical.

In sum, this petition should be refused.

There is no disagreement between the courts of appeals. The only two courts of appeals to consider this issue agree.

One factor in whether this Court grants review is whether there is a

conflict between courts of appeals on the issue.4 There is no conflict on

3Aldana v. State, Slip Op. at 3–4; 2015 WL 2344023 at *2 (Tex. App.—El Paso 2015, pet. filed). 4Tex. R. App. P. 66.3(a) (“[W]hether a court of appeals’ decision conflicts with another court of appeals' decision on the same issue[.]”).

! Reply to the State’s Petition for Discretionary Review Page 2 of 12 this issue here. Both the El Paso and Amarillo Courts of Appeals have

considered this issue and agreed.

In this case, the El Paso Court of Appeals found that the inclusion

of the fine in each judgment would likely lead to cumulation of the

fines. Each judgment included the $3,000 fine. An Order to Withdraw

Funds was included with and incorporated by reference into each

judgment. Each one of these directed the withdrawal of the $3,000 as-

sessed in the judgment. This was dispositive: “The order to withdraw

funds in Counts Four and Five, however, are expressly incorporated

into the judgments of conviction and became part of it.”5

In Habib v. State,6 the Amarillo Court of Appeals was similarly per-

suaded by the inclusion of fines in both bills of costs. There, the defen-

dant, in addition to a sentence of imprisonment, was fined $5,000 on

both cases.7 The trial court ordered these sentences to run concurrent-

ly.8 But the Bill of Costs for each case included the fine.9 In deleting the

fine from one of the cases the court of appeals noted that there should 5Aldana v. State, Slip Op. at 3–4; 2015 WL 2344023 at *2 (Tex. App.—El Paso 2015, pet. filed). 6 431 S.W.3d 737 (Tex. App.—Amarillo 2014, no pet.) 7 431 S.W.3d at 742. 8 Id. 9 Id.

! Reply to the State’s Petition for Discretionary Review Page 3 of 12 be only one, cumulated fine: “When sentences are ordered to run con-

currently, the judgment should not reflect a cumulated fine.”10

In both cases, the defendant was going to pay the fine more than

once notwithstanding the concurrency of the sentences. In this case,

there were Orders to Withdraw Funds incorporated into the judg-

ments; in Habib, the fines were included in both Bills of Costs. Both

situations were going to cause the duplicate collection of the fines from

the defendant. Therefore, the courts of appeals made revisions to re-

flect and insure that only one fine should and would be collected.

The State’s concerns hinge on TDCJ’s not following the trial court’s di- rectives.

The State’s PDR makes much of TDCJ’s ability to do what it’s suppose

to do. Because TDCJ will do what it ought, according to the State, Al-

dana’s concerns are for not, and the El Paso Court of Appeals acted

precipitously. TDCJ’s doing what it is directed to do is, however, pre-

cisely why these judgments needed reformation.

10Id. (Wilson v. State, No. 07-11-00019-CR, 2012 WL 205848, at *1, 2012 Tex.App. LEXIS 525, at *2 (Tex. App.—Amarillo Jan. 24, 2012, no pet.) (per curi- am) (mem. op., not designated for publication) (citing State v. Crook, 248 S.W.3d 172, 177 (Tex. Crim. App. 2008)).

! Reply to the State’s Petition for Discretionary Review Page 4 of 12 The State contends that the El Paso Court of Appeals’ opinion

hinges on “an assumption that mere functionaries in the prison system

are unable to understand the law and will charge Appellant $9,000 in-

stead of the $3,000 he actually owes.”11 The State continued:

This is thin gruel indeed on which to base a decision that these judgments need fixing. There is no reason to presume in- competence on the part of the Institutional Division of the De- partment of Criminal Justice, and there is no reason to think that the concept of a “concurrent fine” is beyond the ken of those who work in the Classification and Records Department. …12 ! The problem, though, with this rhetoric is that the State is right:

TDCJ will do what it’s directed. As noted above, this case and Habib

both contained directives to withdraw all the fines. In this case, there

were Orders to Withdraw Funds incorporated into each judgment.13 In

Habib, the fine was included in the Bill of Costs for each case. For the

State’s argument to be valid, TDCJ would have to cipher out for itself

that the trial courts had made errors in these documents, ignore those

directives, and then implement what it had concluded was correct in

11 State’s PDR at 10. 12 Id. 13 CR at 177, 182, 187.

! Reply to the State’s Petition for Discretionary Review Page 5 of 12 lieu of what the trial court sent. This would be TDCJ doing the com-

plained of “fit of semi-nunc pro tunc jiu jitsu.”14

In sum, the reformations in this case and Habib were necessary be-

cause TDCJ would follow the dictates contained in the documents

from the trial courts. The State’s argument for granting review is mis-

placed.

There’s a reason court costs are included in only one bill of costs in cases with multiple convictions: to prevent their duplicative collection.

In this case, court costs are included in only one case. The State recog-

nizes this: “All three withdrawal orders reflect a fine of $3,000. One of

them includes court costs.”15 In Habib, the court of appeals revised the

judgment in one case to delete the duplicative assessment of costs.16

While court costs are “a nonpunitive recoupment of the costs of judi-

cial resources expended in connection with the trial of the case[,]”17 the

concern leading to their deletion in Habib is the same as the El Paso

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